>>„ 































INDIANA MUNICIPAL LAW 



THE LAW APPLICABLE TO 



CITIES AND TOWNS 



IN 



INDIANA 




CONTROLLING THEIR INCORPORATION, ORGANIZATION AND 
GOVERNMENT AS CONTAINED IN THE CONSTITUTIONAL 
AND STATUTORY LAW OF THE STATE AND FED- 
ERAL AND STATE COURT DECISIONS 



BY 

JOHN E. '^SCOTT 

OF THE INDIANAPOLIS BAR 
FORMERLY CITY ATTORNEY AND COUNSEL FOR THE CITY OF INDIANAPOLIS 



INDIANAPOLIS 

THE BOWEN-MERRILL COMPANY 

1899 



*^\VEREB ^ 



'^•w jjy>^ 



^^' 






2S04 



COPYEIGHT 1899 
BY 

THE BOWEN-MEEKILL COMPANY. 



TVS^O COPIES RECEIVED. 



;OPY, 






THE HOLLENBECK PRESS, 
INDIANAPOLIS. 



/ s^^ 



PREFACE 



This work is a complete compilation of the law applicable to cities 
and towns in Indiana, and controlling their incorporation, organiza- 
tion and government. This law is presented as it is determined by 
the constitution of the United States and the state of Indiana; by the 
general statutes of the state as they have been amended and are now 
in force; and by the decisions of the federal courts and the courts of 
last resort of the state. Miscellaneous statutes and provisions bearing 
relation to the various incorporating acts and in aid of their objects 
are included, together with full notes of all the decisions construing 
and applying them. An appendix containing a list of special and 
temporary acts is added. 

A system of cross-references makes readily accessible the several 
constitutional provisions and statutes, or sections thereof, bearing 
upon the same subjects or having close connection, and the decisions 
thereunder. 

The general act for the incorporation of towns was passed in 1852, 
that for cities generally in 1867, and those for the larger cities in 1891, 
1893 and 1899. In addition to these, other acts relating to the sub- 
ject have been passed in great number. Legislation upon the subject 
has become complicated and confusing; and judicial decisions based 
upon statutes and involving municipal questions have become numer- 
ous and frequently conflicting. In many instances there is but an 
apparent conflict in the decisions™ the result of changes in the laws 
by repeal, amendment, or new enactment. It has become a great 
labor to ascertain and apply the law; and in view of the present and 
growing importance of the subject, the presentation of all the law 
thereon in orderly, classified and compact form has been deemed 
necessary. 

With the consent of the owners of the copyrights, I have made 
free use of the syllabi of the Indiana Supreme and Appellate Court 
Reports, Burns' Revised Statutes 1894, and Supplement 1897, includ- 
ing annotations, Burns' Indiana Index-Digest, Ripley's Digest, 
Black's Digest and Woollen's Digest. I gratefully acknowledge my 
indebtedness to the authors of the several works mentioned. 

John E. Scott. 
August 1, 1899, 

(iii) 



/O 



TABLE OF CONTENTS. 



[References are to Sections.'] 

CONSTITUTION OF THE UNITED STATES. 
1787. 

ARTICLE 1.— THE CONGRESS. 
1. Powers of congress. 2. Restrictions upon states. 

ARTICLE 4.— CITIZENS-PRIVILEGES AND IMMUNITIES. 

3. Citizens— Privileges and immunities. 

ARTICLES IN AMENDMENT OF THE CONSTITUTION. 

ARTICLE 14.— CITIZENS— PRIVILEGES AND IMMUNITIES. 

4. Citizens — Privileges and immunities. 

CONSTITUTION OF STATE OF INDIANA. 
1851. 

ARTICLE 1.— BILL OF RIGHTS. 

5. Unreasonable search or seizure. 10. Trial by jury inviolate in civil cases. 

6. Courts shall be open. 11. Compensation for services and property. 

7. No person twice in jeopardy. 12. Exemption— No imprisonment for debt. 

8. Excessive bail and punishment pro- 13. Privileges and immunities equal. 

hibited. 14. Laws impairing contracts. 

9. Offenses bailable. 

ARTICLE 2.— SUFFRAGE AND ELECTIONS. 

15. Elections free. 21. Disfranchisement. 

16. Qualifications of electors. 22. Effect of holding lucrative offices. 

17. Soldiers — Seamen — Marines. 23. Defaulters not eligible. 

18. Residence. 24. Pro tempore appointments. 

19. Bribery a disqualification for office. 25. Electors free from arrest. 

20. Challenge to duel. 26. Method of election. 

ARTICLE 3.— DISTRIBUTION OF POWERS. 

27. Three departments. 

ARTICLE 4.— LEGISLATIVE. 

28. Local laws forbidden. 29. Laws must be general. 

(V) 



VI TABLE OF CONTENTS. 

[^Beferences are to Sections.'] 
ARTICLE 6.— ADMINISTRATIVE. 

30. Residence of municipal officers. 32. Vacancies, bow filled. 

31. Impeachment of officers. 

, ARTICLE 7.— JUDICIAL. 

33. Judicial powers. 35. Ineligibility of judges. 

34. Conservators of the peace. 

ARTICLE 10.— FINANCE. 
36. Assessment and taxation. 37. State can not assume municipal debt. 

ARTICLE 11.— CORPORATIONS. 

38. General laws. 

ARTICLE 13.— MUNICIPAL DEBT. 

39. Indebtedness limited— Excess void. 

ARTICLE 15.— MISCELLANEOUS. 

40. Official appointments. 43. Official oath. 

41. Duration of office. 44. Public grounds. 

42. Officer holding over. 

R. S. 1894, § 235. SCHEDULE. 
45. "Wlien constitution takes effect, 

CLAUSES. 

1. Laws continued. 
4. Municipal acts continued. 
16. Clarksville. 



CHAPTER 1. 

CITIES. 

ARTICLE 1.— INCORPORATION AND ORGANIZATION. 

46. Petition — Order for census. 66. Vacancies. 

47. Marshal's assistants — Return. 67. Vacancies — How filled. 

48. Notice of election. 68. Term of appointee. 

49. Election board. 69. Cities of fifteen thousand voters. 

50. Manner and return of election. 70. Councilmen. 

51. Town becomes city — Record conclu- 71. Aldermen. 

sive. 72. Legislation— Election. 

52. Notice of election. 73. Separate action. 

53. Wards, division of cities into— Vot- 74. Officers— Election. 

ing precincts. 75. President of board. 

54. Ordinance creating wards — Notice. 76. Records— Journal. 

55. Old cities may adopt this act. 77. Pay of members. 

56. Acquired rights— Interest on orders. 78. President of board, when acting 

57. Old officers and ordinances. mayor. 

58. Duties of common council in towns. 79. Sewer tax and districts. 

59. City officers. 80. Mayor's duties and powers. 
59a. City attorney— City engineer— Re- 81. Docket fees— Vacancies. 

moval. 82. Suits by city, what averments un- 

60. Oath of election boards. necessary. 

61. Law of city elections. 83. Suits against railroads — Process — 

62. Canvass of votes. Judgment. 

63. Inspector's certificate. 84. Actions for penalties. 

64. Notice to persons elected. 85. Imprisonment — Stay. 

65. Penalty for refusal to serve. 86. Clerk's duties— Evidence— Fees. 



TABLE OF CONTENTS. 



Vll 



\_Iieferences are to Sections.'] 



87. Orders— Clerks duties. 100. 

88. Duplicate tax list. 101. 

89. Assessor's duties. 102. 

90. Assessor's duties. 103. 

91. Civil engineer's duties. 104. 

92. Street commissioner's duties. 105. 

93. Marshal's duties and powers. 106. 

94. Has constables' powers. 107. 

95. Same fees as constables. 108. 

96. City attorney's duties and fees. 109. 

97. Treasurer's duties. 110. 

98. Duties of treasurer and clerk. 111. 

99. Treasurer's duties — Interest. 112. 
99a. Treasurer's duties— Interest. 113. 



Interest — Orders receivable. 

Treasurer's statements and liability. 

Treasurer's assessments. 

Collecting delinquent taxes 

Lien of taxes. 

Collecting taxes. 

Sale of land for taxes. 

Notice of sale of chattels. 

Chattels at auction. 

Land, how sold. 

Eeturn of land sold — Redemption. 

Annual settlement. 

Fees on forfeited lands. 

Oath — Bonds. 



ARTICLE 2.— GOVERNMENT AND POWERS. 



114. Meetings — Casting vote — President 154. 

pro tempore. 155. 

115. Stated and special meetings. 156. 

116. Officers. 157. 

117. Ordinances. 158. 
117a. Ordinances — Approval and objec- 159. 

tions by mayor. 160. 

118. Penal ordinances — Publication. 161. 

119. Expulsion of officers. 162. 

120. City seal. 163. 

121. Streams and ferries. 164. 

122. Contracts. 165. 

123. Salaries. 166. 

124. Common council — Control of finances 167. 

— General powers. 168. 

125. Licensing and regulating business by 169. 

cities. 170. 

126. Grades of railroad tracks. 171. 

127. Sewer, gas and water connections. 172. 

128. Market-houses. 173. 

129. Market-houses. 174. 

130. Market-houses— Nuisances. 175. 

131. Pipes for heating, etc. 176. 

132. Selling real estate. 177. 

133. Vote necessary — Deed. 178. 

134. Appraisement. 179. 

135. Conveyance of public grounds. 180. 

136. Deed, how executed — Title conveyed. 181. 

137. Real estate for sanitary purposes. 182. 

138. Water-works. ■ 183. 

139. Infirmary for poor. 184. 

140. Large cities may borrow money. 

141. Purpose of loan. 185. 

142. Ordinance for loan. 186. 

143. Interest — Sale of bonds. 

144. Large cities — Funding bonds. 187. 

145. Limit of debt. ]88. 

146. Limit of tax levy. 

147. Orders forbidden. 189. 

148. Appropriations forbidden. 

149. Sinking fund commissioners. 190. 

150. Politics of commissioners — Election 

—Oath— Bond. 191. 

151. Treasurer's duties — Disposition of 

funds. 192. 

152. Statement to be published. 

153. Interest— Use of funds— Penalty for 193. 

misapplication. 194. 



Compensation of commissioners. 

Removal . 

Vacancies. 

Funding by small cities. 

Tax — Sinking fund. 

Surrender of charter. 

Petition — Proceedings . 

Official acts cease with decree. 

Vested rights not affected. 

Constructing harbor. 

City may do the work. 

Contract. 

Map and profile — Estimate. 

Appropriation of land. 

Condemnation. 

Notice of appraisement. 

Report. 

Possession after tender. 

Appeal. 

Assessments are liens — Foreclosure. 

Harbors —Slips — Docks — Regulating. 

Owners to repair. 

Notice. 

Construction, 

Plan and estimate. 

Return of assessment. 

Assessments, how collected. 

Liability of city — Superintendent. 

Proceedings. 

Sewers — Drains — Cisterns . 

Sewers — Cost in cities less than thirty- 
five thousand. 

Main sewers — Assessment of costs. 

Laws governing assessments— Bonds 
— Payment. 

Drains, inlets and outlets — Damages. 

Petition to circuit court — Remon- 
strance—Proceedings. 

Report, correction of — Hearing — Or- 
der of court. 

Construction — Assessments — Collec- 
tion. 

Notice of proceedings — Liens — Re- 
cording. 

Act liberally construed — Informali- 
ties — Release. 

Repairs. 

Report of commissioner. 



vni 



TABLE OF CONTENTS. 



\_Iieferences are to Sections.'] 



-Eecord- 203. 



195. Agreement as to damages 

ing — Collection . 

196. Levees — Construction by city — Pro- 

cedure. 

197. Contract — Bids — Payment. 

198. Jurisdiction of city — Condemnation. 

199. Collection of assessment — Official 

duties. 

200. Duplicates— Description — Engineer. 

201. Aid to roads, bridges, etc. 

202. Aid to railroads, hydraulic compa- 

nies, etc. 

AETICLE 3. 

212. General and specific taxes. 

213. Equalization — Fixing rate — Eefund- 

ing. 

214. Sinking fund tax. 

215. Temporary loans. 



218. 
219. 
220. 

221. 



204. 
205. 
206. 
207. 
208. 
209. 
210. 
211. 



Aid to roads in other states, by bor- 
der counties, cities and townships. 
Bonds by border city. 
Petition to city. 
Duty of council. 
Bonds. 

Interest — Sinking fund. 
Payment of aid. 
Jurisdiction beyond limits. 
By-laws — Penalties. 



—TAXATION. 

216. Cities governed by this act — Payment 

of taxes — Assessment and equaliza- 
tion. 

217. Time to pay taxes — Delinquency — 

Penalty. 



AETICLE 4.— IMPEOVEMENT OF STEEETS. 



Power over streets. 222. 

Petition for street improvements. 
Cost, how apportioned. 223. 

Apportionment of cost of improvement. 



Payment — Lien — Order without peti- 
tion. 
Payment, how enforced. 



AETICLE 5.— OPENING AND VACATION OF STEEETS. 



224. 
225. 
226. 
227. 
228. 
229. 
230. 
231. 
232. 
233. 
234. 
235. 
236. 
237. 
238. 

253. 
254. 



256. 

257. 
258. 



262. 
263. 
264. 
265. 
266. 
267. 
268. 



City commissioners. 239. 

Proceedings in council. 240. 

Duty of commissioners. 241. 

Hearing and proceedings. 242. 
Assessment of damages and benefits. 243. 

Eeport. 244. 

Eeport. 245. 

Eeport as to infants and insane. 246. 

Action of council on report. 247. 

Duty of clerk— Lien. 248. 

Payment of damages. 249. 

Collection of assessments. 250. 

Eeport of collections. 251. 

Private corporations. 252. 
Appeal. 

AETICLE 6.— ANNEXATION 



No injunction. 

Payment of damages. 

Tendering damages — Injunction. 

Vacation of streets, etc. 

Proceedings of commissioners. 

Eeport. 

Action on report. 

Clerk's duty. 

Eeference of report and proceedings. 

Change of street on petition of abutters. 

Eemoval of obstructions, etc. 

Plats. 

Pending proceedings. 

Compensation and damages. 

OF TEEEITOEY, 



Extension over platted lots. 
Extension over contiguous lands — Ac- 
tion of council. 



255. Proceedings by county board. 



AETICLE 7.- 

Fire wardens. 

Eegulation to prevent fires. 

Fire engines and houses. 



-FIEE DEPAETMENT. 

259. Power of chief engineer and assist- 

ants. 

260. Privileges of firemen. 

261. Destruction of buildings. 



AETICLE 8.— CITY COUET. 



Election of judge. 271. 

Commission — Oath — Bond. 272. 

Style and jurisdiction. 273. 

Civil causes, when for trial. 274. 

Seal. 275. 
Court of record — Effect of judgment. 276. 

Process and service. 277. 

Eules — Powers of judge. 278. 



Change of venue. 

Trial. 

New trials. 

Appeals. 

Execution. 

Marshal's and constable's duties — Fees. 

Judge's fees. 

Judge pro tempore. 



270. Sittingsof court— Eecords—Transcript.279. Judge may practice law. 



TABLE OF CONTENTS. 



IX 



\_Beferences are to Sections.'] 
ARTICLE 9.— BOARD OF PUBLIC WORKS. 



280. Board of public works in cities of 288. 

fifty thousand. 289. 

281. Bonds of members. 290. 

282. Duties— Salary. 291. 

283. Repair of streets. 292. 

284. Control of street improvements. 293. 

285. Recommending street improvements. 

286. Meetings — Quorum — Record. 294. 

287. Record of proceedings. 295. 



Employment of laborers. 
Estimates of cost. 
Power to create liability. 
Payment on contracts — Statement. 
President and clerk. 
Preservation of property — Office- 
Records — Expenses . 
Appointment of officers. 
Interfering with board — Penalty. 



ARTICLE 10.— METROPOLITAN POLICE AND FIRE DEPARTMENT. 



296. 



297. 
298. 

299. 

300. 

301. 
302. 
303. 
304. 

305. 
306. 
307. 
308. 
309. 
310. 
311. 
312. 

313. 

314. 

315. 
316. 



341. 
342. 

347. 

348. 
349. 



Boards of metropolitan police and 317. 

fire department in cities of fifty 318. 

thousand. 319. 
President, secretary, bond, salary. 

Appointment of officers and employes 320. 

—Salaries. 321. 
Control of police and fire depart- 
ments. 322. 
Appointment of officers of fire depart- 323 . 

ment. 324. 

Expenses of department — Payment. 325. 

^ules to be made. 326. 
Powers of police officers. 

Service of process — OffSceof marshal 327. 

abolished. 328. 

No fees or rewards to be received. 329. 

Interference with board — Penalty. 330. 
Additional patrolmen. 

Political work prohibited. 331. 

Bonds of officers. 332. 
Fees taxed and collected. 

Laws repealed. 333. 
Police commissioners in cities of ten 

thousand to thirty-five thousand. 334. 

Officers and patrolmen — Compensa- 335. 

tion — Removal. 336. 

Officers — President — Secretary — 337. 

Clerk. 338. 

Rules and regulations. 339. 

Power and authority. 340. 



Powers of officers and members. 

Expenses — How and by w^hom paid. 

Municipal process, how served — Of- 
fice of marshal abolished. 

Fees — Compensation . 

Interfering with commissioners and 
force — Penalty. 

Additional patrolmen. 

Duties as to elections — Penalty. 

Bonds of officers. 

Marshal's fees. 

Metropolitan police boards — Oaths — 
Bonds. 

Appointees of board — Compensation. 

Officers of board — Pay of clerk. 

Rules and regulations. 

Abolition of existing boards and of- 
ficers. 

Powers of policemen. 

Station houses — Expenses of depart- 
ment. 

Duties of policeman — Marshal's of- 
fice abolished. 

Fees and rewards. 

Interfering with board — Penalty. 

Merchant police— Special policemen. 

Political work prohibited. 

Bonds of officers. 

Fees, taxation and payment. 

Repeal. 



ARTICLE 11.— HUMANE INSPECTOR. 



Humane inspector — Appointment 343. 

and salary. 344. 

Petition of humane society — Ap- 345. 

pointment. 346. 



Duty of inspector. 
Pay. 

Powers. 

Affidavit — Prosecution of offenders. 



Park commissioners 

— Term. 
Oath and bonds of officers. 
Donations— Acceptance . 



ARTICLE 12.— PARK COMMISSIONERS. 

Appointment 350. Taxes — Assessment — Application. 



351. Duties — Compensation. 

352. Accounts — Reports. 

353. ~ ■ " 



ARTICLE 13.-CITIES OF SEVENTY THOUSAND. 
Offices abol- 



354 Assessor and treasurer 
ished. 

355. County treasurer — Duties. 

356. City treasurer to make settlement. 

357. City treasurer's settlement with city 

clerk — Procedure . 



358. License or special tax, how collected. 

359. Sheriff to collect all assessments. 

360. Assessment and appraisement—Basis 

of lew. 

361. Auditor 

gate assessments. 



TABLE OF CONTENTS. 



\_References are to Sections.'] 



362. 


Levy, how and by whom made — 


372. 




Limit. 


373. 


363. 


Tax levies, how certified. 


374. 


364. 


County treasurer to give notice. 


375. 


365. 


DeHnquent taxes — Penalty. 


376. 


366. 


Sale of personal property. 




367. 


Settlement with county auditor. 


377. 


368. 


Payments to school commissioners. 


378. 


369. 


Monthly settlements with commis- 
sioners. 


379. 


370. 


Credit for school taxes. 


380. 


371. 


Collecting dehnquent tax. 


381. 



When settlement to be made. 

Paying delinquent tax. 

Returns of delinquent lands. 

Payment enforced by sale — Notice. 

Payment of bids, how enforced — Guar- 
anty. 

Certificate of purchase — Title. 

Compensation of auditor and treasurer. 

Expense to county, how determined 
and paid. 

Plats — City commissioners to approve. 

Approval — Costs . 



CHAPTER 2. 
CITIES OF MORE THAN ONE HUNDRED THOUSAND. 

ARTICLE 1.— INCORPORATION AND OFFICERS. 



382. What cities governed by this act. 

383. Officers — Election — Contests. 

384. Powers and duties of old officers. 

385. Vacancies — Election. 

386. Officers to qualify. 



387. Oaths and bonds. 

388. Contracts with officers prohibited- 

Penalty. 

389. Officers not to purchase claims. 



ARTICLE 2.— LEGISLATIVE— COMMON COUNCIL. 



Va- 



390. Common council. 

391. Wards. 

392. Election of councilmen. 

393. Qualification of councilmen 

cancy — Filling of. 

394. Expulsion of councilmen. 

395. Meetings of council. 

396. Presiding officers. 

397. Meetings public. 

398. Clerk of council. 

399. Ordinances— Passage — Signing. 

400. AVhen ordinances may be passed. 

401. Penal ordinances — Publication. 

402. Approval of ordinances — Veto. 

403. Record of ordinances — Yeas and 

nays. 

404. Powers of common council. 

405. Penalties— Limit. 

406. Imprisonment for not paying fines.. 



407. Duties of departments. 

408. Charges against officers — Trial. 

409. Trial of charges— Vote to remove. 

410. Taxes — Levy. 

411. Loans. 

412. Bonds — Issue and sale. 

413. Temporary loans. 

414. Refunding bonds. 

415. Warrants on treasurer — When pro- 

hibited. 

416. Interest on loans — Redemption. 

417. Failure to levy tax — Appropriations. 

418. Corporate boundaries — Annexation of 

lands. 

419. Appeal from annexation proceedings — 

Trial — Judgment , 

420. Parts of city or town not to be annexed 

—Debts. 

421. Disannexing territory. 



ARTICLE 3.— EXECUTIVE OFFICERS AND DEPARTMENTS. 



422. Vesting of executive authority. 432. 

423. Mayor and clerk— Election— Quah- 433. 

fications. 

424. Vacancy in office of mayor — Elec- 434. 

tion. 435. 

425. Acting mayor. 436. 

426. Duties of mayor. 

427. Salary of mayor. 437. 

428. Clerk— Duties— Salary. 

429. Departments established— Rules. 438. 

430. Qualifications of members of depart- 

ments — Fees, how applied. 439. 

431. Estimates of expenditures — Appro- 

priations. 440. 



Contracts limited to appropriations. 

Issuing warrants beyond appropria- 
tions —Penalty. 

Comptroller — Appointment — Salary. 

Duties of comptroller. 

Deputy comptroller — Appointment — 
Salary — Powers. 

City attorney — Assistants — Appoint- 
ment — Duties — Salaries. 

Board of public works — Appointment 
— Salaries —Bonds. 

Clerk of board — Salary — Civil engi- 
neer — Appointment— Salary. 

Powers of board. 



TABLE OF CONTENTS. 



XI 



{^References are to Sections.'\ 



441. 
442. 

443. 
444. 
445. 
446. 

447. 
448. 
449. 
450. 
451. 
452. 
453. 
454. 



455. 



456. 

457. 
458. 

459. 



460. 

461. 
462. 

463. 



464. 
465. 
466. 
467. 
468. 

469. 

470. 

471. 

472. 
473. 
474. 
475. 

476. 
477. 
478. 
479. 

480. 
481. 



Work, how to be done. 

Drawings for work— Notice of let- 
ting— Oollasion. 

Expenses, how paid. 

Condemnation of property. 

List of owners of property taken. 

Assessment of damages and bene- 
fits. 

Minors and insane persons. 

Remonstrance — Appeal . 

Appeal, how taken— Trial. 

Roll of assessments— Liens. 

Assessments, when due— Collection. 

What damages paid by city. 

Certificates for damages. 

Order — Petition for improvement — 
Notice — Remonstrance — Appraise- 
ment. 

Cost of improvements — Improve- 
ment of one side of street or side- 
walk, etc. — Cost — Apportionment. 

Lots liable to assessment — Liens — 
Sales — Redemption. 

Payment by installments. 

Assessment roll — Contents — Affida- 
vit of contractor. 

Improvement assessments — Dupli- 
cate — Payment — Notice to delin- 
quents. 

Payment by installments -Waiving 
errors — Payment before due. 

Duty of treasurer — Separate accounts. 

Bonds for street improvements — In- 
stallments — Penalty— Foreclosure, 

Failure to pay installment — Effect — 
Foreclosure — Attorneys' fees — No- 
tice to pay — Limitation. 

Change of levees or water-course. 

Liens of assessments —What governs 

Sewers and drains — Establishing. 

Costs of sewers— How paid. 

Main sewers— Assessment of costs — 
Construction through cemeteries. 

Assessment roll — Contents — Collec- 
tion—Laws applicable. 

Levees, drains and w^ater-courses 
-Change and construction. 

Sprinkling and sweeping- Contracts. 

Cost of sprinkling and sweeping. 

Collection of sprinkling assessments. 

Contracts and costs for lamp posts. 

Board of public safety— Appoint- 
ment — Salary. 

Rules — Quorum— Chairman — Clerk . 

Duties of board. 

Members of fire and police force. 

Charges against firemen and police- 
men—Hearing. 

Powers of policemen. 

Duties of policemen. 

ARTICLE 4.- 



521. Police court. 

522. Seal — Change of venue. 

523. Police judge — Election 

Bond — Jurisdiction. 



Term 



482. Additional fire and police force. 

483. Oaths — Who may administer. 

484. Duties of police force. 

485. Gaming. 

486. Arrest and trial of offenders. 

487. Political work prohibited — Penalty. 

488. Bonds of appointees. 

489. Insurance fund. 

490. Treasurer and assessor. 

491. Duties of head of department of 

finance. 

492. Salary of treasurer in cities of one 

hundred thousand. 

493. Pay for assessment. 

494. Penalty for treasurer or assessor re- 

ceiving pay. 

495. Failure to perform duties — Removal. 

496. Board of health and charities — Ap- 

pointment — Salary — Duties — Sani- 
tarian — Duties — Sanitary officers. 

497. Health ordinances — Plumbing in- 

spector. 

498. Board of park commissioners — Ap- 

pointment — Oath of members. 

499. Terms of office. 

600. Chairman — Clerk — Employes — Re- 

movals — Duties and compensation. 

601. Office — Records, etc. 

502. Report to mayor — Receipts and ex- 
penditures. 
603. Quorum. 

504. Superintendent of parks. 
605. Government of parks. 
506. Powers of board. 

607. May bring actions. 

608. Charge of parks— Rules and regula- 

tions. 

609. Authority of board — Expenditures. 
. 610. Franchises for railway prohibited. 

611. Sale of park lands — Concerning erec- 
tion of buildings. 

512. Grants — Conveyances — Devises, etc., 

for parks. 

513. Admission to gardens and museums. 

514. Streams and water-courses within city 

limits — Rules — Regulations — Ordi- 
nances. 
615. Power of eminent domain. 

516. Assessment of benefits and damages — 

Appraisers — Condemnation proceed- 
ings — Appeal. 

517. Assessments— Notice — Hearing prop- 

erty owners — iVssessment roll— Con- 
firmation — Assessment lien — Fore- 
closure. 

618. Benefits and damages — Tender — Pay- 

ment. 

619. Payment for lands. 

520. Description of land filed in recorder's 
office. 
POLICE COURT. 

624. Penalties imposed. 

525. Rules — Oaths — Practice — Appeals. 

526. Judge pro tem. — Powers — Docket 

fees. 



xu 



TABLE OF CONTENTS. 



lRefere7ices are to Sections.'] 



527. Discharge of poor prisoners. 

528. Vacancy — Appointment. 

529. No fees to be received. 

530. Salary of judge, payment. 

531. Clerk— Bond— Duties. 

532. Bailiff— Bond— Duties. 



533. Salary of bailiff. 

534. Prosecuting attorney— Duties— Fees. 

535. Witness fees. 

536. Process — Issue — Service. 

537. Duties of police force. 

538. Old officers to continue to act. 



ARTICLE 5.— CEMETERIES. 

539. Locating streets or highways through 540. Locating railways through cemeteries, 
cemeteries. 



641. 
542. 
543. 
544. 
545. 



649. 
650. 
551. 
552. 

553. 
554. 

555. 

556. 
557. 
658. 

559. 
560. 
561. 

662. 
563. 
564. 
565. 



CHAPTER 3. 

CITIES OF MORE THAN FIFTY THOUSAND. 

ARTICLE 1.— INCORPORATION AND OFFICERS. 

Cities governed by this act. 546. Oaths and bonds. 
Elective officers — Election. 547. Officers not to have interest in con- 
Powers of officers under old charters. tracts. 

Vacancies — Filling of. 548. Officers not to purchase claims. 
Notice to persons elected. 

ARTICLE 2.— LEGISLATIVE— COMMON COUNCIL. 



Legislative authority. 566. 

Wards. 

Councilmen — Election. 667. 

Qualifications of councilmen — Va- 
cancy. 668. 

Expulsion of members — Rules. 569. 

Meetings of council — Quorum — Pas- 570. 

sage of ordinances. 571. 

President of council — City clerk — 572. 

Election. 573. 

Meetings public. 674. 

Duties of clerk. 675. 

Ordinances — Passage— Rules — Sign- 576. 
ing. 

Passage of ordinances. 577. 

Publication of ordinances. 

Approval of ordinances — Veto — Pas- 578. 
sage. 

Recording of ordinances. 679. 

General powers of council. 

Penalty for violation of ordinances. 580. 

Imprisonment. 



Executive and administrative func- 
tions. 

Investigating departments by coun- 
cil. 

Impeaching and removal of officers. 

Taxation. 

Borrowing money. 

Bonds — Interest — Sale. 

Temporary loans. 

Refunding bonds 

Warrants — When not drawn. 

Interest on bonds. 

Appropriations, tax levy, when con- 
tinuous. 

Boundaries — Conclusive evidence — 
Annexation. 

Remonstrance against annexation — 
Proceedings. 

Part of citv or town not to be annexed 
—Debts." 

Disannexing territory. 



ARTICLE 3.— EXECUTIVE OFFICERS AND DEPARTMENTS. 



681. 

582. 

583. 
584. 
585. 
586. 
587. 

588. 
589. 



Executive and administrative pow- 690. 
ers. 591. 

Mayor — Election — Term — Quahflca- 592. 
tions. 693. 

Vacancy in office of mayor. 

Acting mayor. 694. 

Duties of mayor. 

Salary of mayor. 696. 

City clerk— Deputies— Duties — Sal- 
ary — Fees. 596. 

Departments established. 

Qualifications of heads of depart- 597. 
ments — Payment of moneys re- 
ceived. 



Estimates by departments. 
Limit of power to bind city. 
Exceeding authority — Penalt5^ 
Comptroller — Appointment — Salary 

—Bond. 
Duties of comptroller — Payment of 

salaries. 
Deputy comptroller — Appointment — 

Salary. 
City attorney — Appointment — Bond 

— Duties — Salary — Deputy . 
Board of public works — Appomt- 

ment — Salaries — Bonds. 



TABLE OF CONTENTS. 



xm 



\_Beferences are to Sections.'] 



598. 



599. 

600. 

601. 
602. 
603. 

604. 
605. 
606. 
607. 
608. 
609. 
610. 

611. 
612. 
613. 



614. 

615. 
616. 

617. 

618. 

619. 

620. 
621. 
622. 
623. 
624. 
625. 



653. 
654. 
655. 



656. 

657. 
658. 
659. 



Clerk of board— Appointment— Sal- 626. 

ary — City engineer — Appointment 627. 

— Salary — Bond. 

Board of public works — Powers and 628. 

duties. 

Streets — Repairs and cleaning— Cost 629. 

— Contracts for work. 

Letting contracts for work — Notice. 630. 

Expenses of board. 631. 
Appropriation of property — Notice— 

Eemonstrance. 632. 
List of owners of property affected. 

Damages and benefits. 633. 
Insane persons and infants. 

Remonstrance — Appeal. 634. 
How appeal taken — Judgment final. 
Benefits— Liens — Assessment roll. 

Assessments, when due— Foreclos- 635. 

ure. 636. 

What damages city pays. 637. 

Damages — Payment. 638. 

Improvement' of streets and side- 639. 

walks — Order — Notice — Assess- 640. 

ments — Liens — Payment. 

Expense of improvements— How as- 641. 

sessed. 642. 

Assessments— Liens. 643. 

Payment by installments. 644. 

Certificate of engineer— Assessment 645. 

roll — Notice— Remonstrance. 646. 

Final estimate — Copy of assessment 647. 

roll to treasurer. 

Agreement by persons paying by in- 648. 

stallments. 649. 
Duty of treasurer. 

Street improvement bonds. 650. 
Failure to pay installment — All due. 

Change of levees and water-courses. 651. 
Act governs levee assessments. 

Local sewers — Construction. 652. 



Costs of sewers — Assessment. 

General sewers— Costs- 
ment. 

Assessment roll — Notice — Remon- 
strance. 

Sprinkling streets — Notice for bids — 
Remonstrance. 

Cost of sprinkling — Contracts. 

Payment for sprinkling — Time of 
contract. 

Board of public safety — Appoint- 
ment—Bonds — Salaries. 

Rules for government of police — 
Quorum of board — Clerk. 

Superintendent of police and other 
officers — Pay — Control of police — 
Fire districts. 

Members of fire and police force. 

Removal of firemen and policemen. 

Powers of policemen. 

Policemen to convey prisoners. 

Detail of police — Special policemen. 

Powers of commissioners and super- 
intendents. 

Duty of police force — Powers. 

Gaming houses. 

Duty on making arrest. 

Not to interfere in politics. 

Bonds of appointees. 

Insurance fund. 

City treasurer — Appointment — Sal- 
ary — Oath — Bond . 

Account of moneys^— Reports. 

Salary and fees for treasurer — Dep- 
uty. 

Receiving unlawful compensation — 
Penalty. 

Board of health and charities — Ap- 
pointment—Salary — Duties. 

To prepare ordinances. 



ARTICLE 4.— POLICE COURT. 



Police court — Officers. 661. 

Seal of court — Change of venue. 662. 

Police judge — Appointment —Re- 663. 

moyal — Term — Bond— Sessions — 664. 

Jurisdiction. 665. 

Jurisdiction of police courts —Punish- 666. 

ment— Appeals. 667. 

Rules — Oaths — Appeals. 668. 

Judge pro tern. — Docket fee. 669. 

Failure to pay fine — Imprisonment. 670. 
Vacancy in office of police judge. 



Officers not to receive fees. 

Salary of police judge. 

Clerk of court — Bond — Duties. 

Bailiff of court — Bond — Duties. 

Salary of bailiff. 

Prosecuting attorney — Duties. 

Witness fees. 

Warrants — Service . 

Arrest — Duty of policemen. 

Duty of mayor until act takes effect. 



ARTICLE 5.— DEPARTMENT OF WATER-WORKS. 
Water- works trustees —Appointment 



671. Water-works trustees —Appointment 678. 

—Salary— Bond. 679. 

672. By-laws. 680. 

673. Water rents. 681. 

674. Surplus rents. 682. 

675. Reports by trustees — Deposit of 

money. " 683. 

676. Moneys' kept separate— Orders. 684. 

677. Contracts for works and buildings. 6S5. 



Investigation of books and papers. 

No charge for water for fires. 

Attachments to pipes. 

Notice of letting work. 

Bond of contractor— Trustees not to 

be interested. 
Tax to pay for water- works. 
Lien of taxes. 
Jurisdiction beyond city limits. 



XIV 



TABLE OF CONTENTS. 



\_Beferences are to Sections.'] 

ARTICLE 6.— SCHOOL TRUSTEES-TAXATION— WHARFMASTER. 

686. School trustees— Appointment— Oath 689. Wharfmaster— Appointment — Bond — 

—Bond — Compensation— Duties. Salary— Duties. 

687. Reports of moneys received. 690. Laws repealed— Evansville charter. 

688. Taxation— Duplicate — When taxes 

are due. 



CHAPTER 4. 



CITIES OF MORE THAN THIRTY-FIVE THOUSAND. 



ARTICLE 1.— INCORPORATION AND OFFICERS. 



691. Cities governed by this act. 695. 

692. Elective officers— Election— Terms. 696. 

693. Old officers, powers continued. 697. 

694. Vacancies. ' 698. 



Notice to officers elected. 
Oaths of officers — Bonds. 
Officers not interested in contracts. 
Purchase of claims by officers. 



ARTICLE 2.— LEGISLATIVE— COMMON COUNCIL. 



699. Legislative authority. 

700. Wards— Change of boundaries. 

701. Councilmen— Election — Terms. 

702. Qualifications of councilmen. 

703. Expulsion of councilmen. 

704. Meetings of council — Quorum. 

705. Mayor to preside. 

706. Meetings public. 

707. City clerk— Duty. 

708. Appropriation ordinances — Signing. 

709. Passage of ordinances. 

710. Publication of ordinances. 

711. Approval of ordinances — Veto. 

712. Recording of ordinances. 

713. Powers of council generally. 

714. Penalties imposed. 

715. Imprisonment. 



716. 
717. 
718. 
719. 
720. 
721. 
722. 
723. 
724. 
725. 
726. 

727. 
728. 
729. 

730. 



Executive and administrative duties. 

Investigating departments. 

Impeachment — Removal . 

Taxation. 

Loans — Limit. 

Bonds — Issue and sale. 

Temporary loans. 

Refunding bonds. 

Warrants— When not to issue. 

Interest. 

Continuation of appropriations and 
tax levy. 

Boundaries and annexation. 

Remonstrance — Proceedings . 

Parts of cities or towns not to be an- 
nexed. 

Disannexation of territory. 



ARTICLE 3.— EXECUTIVE AND JUDICIAL OFFICERS AND DEPARTMENTS. 



731. 

732. 

733. 
734. 
735. 
736. 



737. 
738. 
739. 
740. 

741. 
742. 
743. 
744. 

745. 
746. 

747. 



Executive and administrative author- 748. 

ity. 

Mayor — Election— Qualification — 749. 

Term— City clerk. 750. 
Vacancy in office of mayor. 

Acting mayor. 751. 
Duties of mayor — Bond. 

INIayor's court — Fees — Absence — 752. 

Who to act. 753. 

Suits by city. 754. 

Suits against corporations. 755. 
Actions on ordinances. 

Commitment for failure to pay judg- 756. 

ment. 757. 

Salary of mayor. 758. 

City clerk— Duties— Salaiy— Deputy. 759. 

Departments established. 760. 

Qualifications of heads of depart- 761. 

ments— Report of moneys received . 762 . 

Estimates by heads of departments. 763. 

Contracts — When bind city. 764. 

Issuing illegal warrants — Penalty. 765. 



Comptroller — Appointment — Salary 

— Deputy. 
Duties of comptroller. 
City attorney — Appointment — Bond 

— Salary — Duties . 
Board of public works — Appointment 

— Salary — Bonds. 
Engineer — Appointment — Salary. 
Duties and powers of board. 
Contracts for work. 
Letting contracts— Notice— Bids — 

Collusion, etc. 
Expenses of board — Payment. 
Appropriation of property. 
Roll of owners of property. 
Award of damages — Notice. 
Insane persons and infants. 
Remonstrance — Appeal. 
Appeal — How taken — Judg:ment. 
Assessment of benefits — Lien. 
Benefits — When due — Collection. 
Payment by city of damages. 



TABLE OF CONTENTS. 



XV 



\_Beferences are to Sections.'] 



766. 


Damages— Pa yment . 


795. 


767. 


Order for street improvement. 


796. 


768. 


Land or lots assessed— Cost— How 


797. 




estimated — Liability of city. 


798. 


769. 


Lien — Street and alley crossings — 


799. 




Deductions. 


800. 


770. 


Payment by installments. 


801. 


771. 


Assessment roll. 


802. 


772. 


Final estimate— Notice— Hearing. 




773. 


Agreement of persons paying by in- 


803. 




stallments. 


804. 


774. 


Duty of treasurer — Account of fund. 




775. 


Street improvement bonds. 


805. 


776. 


Failure to pay installments — Effect. 


806. 


777. 


Levees, viaducts and tunnels. 


807. 


778. 


Assessments— Liens— Collection. 


808. 


779. 


Sewers and drains. 


809. 


780. 


Local sewers. 


810. 


781. 


Cost— How paid. 


811. 


782. 


Assessments— Collection. 


812. 


783. 


Contracts for sprinkling and sweep- 


813. 




ing. 


814. 


784. 


Cost — Assessment. 


815. 


785. 


Assessments — When payable. 


816. 


786. 


Lamp posts — Contracts for. 


817. 


787. 


Board of public safety — Appointment 


818. 




—Salary. 


819. 


788. 


Rules— Quomm— Chairman— Eec- 






ord. 


820. 


789. 


Duties of board. 


821. 


790. 


Firemen and police— Terms— Re- 


822. 




moval. 


823. 


791. 


Punishment of firemen and police- 


824. 




men. 


825. 


792. 


Powers of policemen. 




793. 


Duty as to prisoners. 


826. 


794. 


Additional policemen. 





Oaths — Who may administer. 

Duties of policemen. 

Gaming houses. 

Arrest — Duty on making. 

Bonds of appointees. 

Insurance fund. 

City treasurer — Office abolished. 

Treasurer of county to be city treas- 
urer. 

Duties of treasurer. 

Settlements by treasurer — Collection 
of taxes. 

Payment of money into treasury. 

City treasurer to deliver precepts. 

Assessments for taxation. 

Duty of county auditor. 

Levy of taxes — Limit. 

Auditor to put taxes on duplicate. 

Notice by county treasurer. 

Collection of taxes — Delinquency. 

Delinquent tax, collection. 

Settlement by county treasurer. 

Payment of school taxes. 

Delinquent list, collection. 

Settlement for delinquent taxes. 

Payment of school delinquency. 

Dehnquent list of lands — Taxes 
chained. 

Sale of delinquent lots. 

Payment of bids— Guaranty. 

Laws applicable to sales. 

School and library tax laws revived. 

Salary of county auditor. 

Board of health and charities — Ap- 
pointment — Salaries— Duties. 

Preparation of ordinances. 



ARTICLE 4.— WATER-WORKS TRUSTEES. 

827. Water-works trustees — Election — Duties and powers. 



CHAPTER 5. 



CITIES OF MORE THAN TWENTY-THREE THOUSAND, 



ARTICLE 1.— INCORPORATION AND OFFICERS. 

828. Cities governed by this act. 832. 

829. Elective officers— Election. 833. 

830. Old officers — Powers continued. 834. 

831. Vacancies. 835. 



Notice to officers elected. 
Oaths of officers — Bonds. 
Officers not interested— Contracts. 
Purchase of claims bv officers. 



ARTICLE 2.— LEGISLATIVE— COMjMON COUNCIL. 



836. Legislative authority. 843. 

837. Wards— Change of boundaries. 844. 

838. Councilmen— Terms. 845. 

839. Qualifications of councilmen. 

840. Expulsion of councilmen. 846. 

841. Meetings of council — Quorum. 847. 

842. Mayor to preside. 848. 



Meetings public. 
City clerk— Duty. 
Ordinances — Signing — Appropria- 
tions. 
Passage of ordinances. 
Publication of ordinance?. 
Approval of ordinances — Veto. 



XVI 



TABLE OF CONTENTS. 



[Beferences are to Sections.'} 



849. 


Recording of ordinances. 


860. 


850. 


Powers of council generally. 


861. 


851. 


Penalties imposed. 


862. 


852. 


Imprisonment. 


863. 


853. 


Executive and administrative duties. 




854. 


Investigating departments. 


864. 


855. 


Impeachment— Eemoval. 


865. 


856. 


Taxation. 




857. 


Loans— Limit. 


866. 


858. 


Bonds — Issue and sale. 




859. 


Temporary loans. 


867. 



Refunding bonds. 

Warrants — When not issued. 

Interest. 

Continuation of appropriations and 
tax levy. 

Boundaries and annexation. 

Remonstrance — Appeal — Proceed- 
ings. 

Parts of cities and towns not to be 
annexed. 

Disannexation of territory. 



ARTICLE 3.— EXECUTIVE AND JUDICIAL OFFICERS AND DEPARTMENTS. 



868. 



870. 

871. 
872. 
873. 

874. 
875. 



876. 

877. 
878. 
879. 
880. 
881. 
882. 
883. 
884. 
885. 



887. 



890. 

891. 
892. 



893. 

894. 
895. 

896. 

897. 
898. 



Executive and administrative author- 
ity. 

Mayor — Election — Qualifications — 
Term — City clerk. 

Vacancy in office of mayor. 

Acting mayor. 

Duties and powers of mayor. 

City court — Officers thereof — Effect 
of judgments — Proceedings. 

Court seal— Change of venue. 

Appointment of judge — Removal — 
Term — Bond — Sessions —Jurisdic- 
tion. 

Original and concurrent jurisdiction — 
I\inishment — Limit. 

Rules — Oaths — Appeals. 

Judge ^ro tern. — Docket fee. 

Failure to pay fine — Imprisonment. 

Vacancy in office of police judge. 

Officers not to receive fees. 

Salary of judge. 

Clerk of court— Duties. 

Bailiff of court— Bond — Duties. 

Suits — Averments as to incorporation 
and publication of ordinances not 
required. 

Railroad and other corporations — 
Summons — Service — Judgment — 
Arrest. 

Actions — Process — Arrest — Com- 
plaint — Proceedings. 

Commitment for failure to pay judg- 
ment — Limit — Manual labor. 

Salary of mayor. 

City clerk ~ Duties — Deputy — Sala- 
ries. 

Departments established. 

Qualifications of heads of depart- 
ments — Reports of moneys re- 
ceived. 

Estimates of heads of departments 
— Tax lev}^ — Appropriations. 

Contracts— When bind city. 

Issuing illegal warrants — Unauthor- 
ized contracts — Penalty. 

Comptroller— Appointment — Salary 
— Deputy. 

Duties of comptroller. 

City attorney— Appointment— Bond 
— Salary — Duties . 



899. 



900. 
901. 
902. 
903. 

904. 
905. 
906. 
907. 

908. 
909. 
910. 
911. 
912. 
913. 
914. 
915. 

916. 



917. 
918. 
919. 
920. 
921. 

922. 
923. 
924. 
925. 

926. 
927. 
928. 
929. 
930. 
931. 

932. 
933. 
934. 

935. 

936. 



Board of public works — Appoint- 
ment — Salary — Bonds — Record of 
proceedings. 

Engineer — Appointment— Salary . 

Duties and powers of board. 

Contracts for work. 

Letting contracts — Drawings and 
specifications — Notice — Bids, etc. 

Expenses of board— Payment. 

Appropriation of property. 

Roll of owners of property. 

Awards and assessments — Damages — 
Benefits — Notice . 

Insane persons and infants. 

Remonstrance — Appeal . 

Appeal — How taken — Judgment. 

Assessment of benefits — Lien. 

Benefits — When due — Collection. 

Damages— Payment by city. 

Damages — Payment. 

Street — Alley — Highway — Water- 
course — Change of. 

Powers of common council— Open- 
ing of streets, alleys, etc. — Re- 
moval of obstructions. 

Order for street improvement. 

Payment by installments. 

Assessment roll. 

Final estimate — Notice — Hearing. 

Agreement of persons paying by in- 
stallments. 

Duty of treasurer — Account of fund. 

Street improvement bonds. 

Failure to pay installments — Effect. 

Levees, viaducts, tunnel or aqueduct, 
water-course, drainage. 

Assessments — Liens— Collection. 

Sewers and drains. 

Local sewers. 

General sewers— Cost — How paid. 

Assessments— Collection. 

Contracts for sprinkling and sweep- 
ing. 

Cost — Assessment. 

Assessments— When payable. 

Board of public safety — Appoint- 
ment — Bond— Salary. 

Rules — Quorum — Chairman — Rec- 
ord. 

Powers and duties of board. 



TABLE OF CONTENTS. 



XVll 



[Bcferences are to Sections.l 



937. Firemen and police — Terms — Ee- 956. 

moval. 957. 

93S. Punishment of firemen and police- 958. 

men. 959. 

939. Powers of policemen. 960. 

940. Duty as to prisoners. 

941. Detail of policemen — Additional po- 961. 

iicemen. 962. 

942. Oaths— Who may administer. 963. 

943. Duties of policemen. 964. 

944. Gaming houses. 965. 

945. Arrest — Duty on making. 966. 

946. Bonds of appointees. 967. 

947. Board of public works — Performance 968. 

of duties of board of public safety. 969. 

948. Pensions and pension fund. 970. 

949. City treasurer — Office abolished. 971. 

950. Treasurer of county to be city treas- 972. 

urer — Duties. 

951. Duties of treasurer. 973. 

952. Settlement by treasurer — Collection 974. 

of taxes. 

953. Payment of money into treasury. 975. 

954. City treasurer to deliver precepts. 976. 

955. Taxation — Assessments. 977. 



Duty of county auditor. 

Levy of taxes — Limit, 

Auditor to put taxes on duplicate. 

Notice by county treasurer. 

Duty of county treasurer — Delin- 
quency. 

Failure to pay installment — Effect. 

Settlement by county treasurer. 

Payment of school taxes. 

Delinquent list. 

Settlement for delinquent taxes. 

Payment of school delinquency. 

Delinquent list— Duty of auditor. 

Sale of land and lots. 

Payment of bids— Enforcement. 

Provisions of law applicable. 

Salary of county auditor. 

Board of health and charities — Ap- 
pointment — Salary — Duties. 

Preparation of ordinances. 

Powers of officers and boards— Mode 
of exercise— Laws and ordinances. 

Laws repealed. 

Words and phrases construed. 

School laws not repealed. 



CHAPTER 6. 



CITIES AND TOWNS. 



ARTICLE 1.— GENERAL PROVISIONS. 



978. Qualifications for office. 998. 

979. Quahfications of voters. 999. 

980. Precincts— Number of voters. 1000. 

981. Boundaries of precinct — Change. 1001. 

982. Town and city elections. 1002. 

983. Authorizing use of voting machines. 1003. 

984. Authorizing the purchase of voting 1004. 

machines. 1005. 

985. Capacity of machines. 1006. 

986. Existing election law^s continued in 

force. 1007. 

987. Time limit for voting. 1008. 

988. Duties of election officers. 1009. 

989. Voting precincts. 1010. 

990. Care and use of machines. 

991. Use of machines in city elections. 1011. 

992. Penalty for tampering with ma- 1012. 

chines. 1013. 

993. Prisons. 1014. 

994. Licenses by cities and towns. 1015. 

995. Ex-Union soldier or sailor — License 

to vend, hawk and peddle. 1016. 

996. Removal of garbage, etc. 

997. Local board of health— Secretary. 

CiT. AND To. — ii 



Security for arms. 

Distribution of arms. 

Planting shade trees. 

Issuance of funding bonds. 

Sinking fund and interest. 

Funding bonds. 

Taxes to pay interest and principal. 

Refunding bonds of cities and towns. 

Tax levy to pay interest and princi- 
pal. 

Interest coupons good for taxes. 

Sinking fund— Investment. 

Notices. 

Allowance of claims and issue of 
w^arrants. 

Claims verified. 

Claim docket kept by clerk. 

Oaths and affirmations by clerk. 

Penalty. 

Act not to applv to cities of more 
than 35,000. 

Payment of unskilled labor— Mini- 
mum wage. 



XVill 



TABLE OF CONTENTS. 



[Beferences are to Sections.'] 
ARTICLE 2.— ANNEXATION— BOUNDARIES. 



1017. 
1018. 
1019. 
1020. 
1021. 
1022. 
1023. 
1024. 
1025. 
1026 
1027. 

1028. 
1029. 
1030. 
1031. 
1032. 
1033. 



1049. 
1050. 
1051. 
1052. 
1053. 
1054. 
1055. 
1056. 

1061. 
1062. 
1063. 
1064. 

1065. 
1066. 
1067. 

1068. 
1069. 
1070. 

1071. 
1072. 

1073. 



1090. 
1091. 
1092. 



1096. 
1097. 
1098. 
1099. 
1100. 
1101. 



Union of cities and towns. 1034. 

Terms and conditions. 1035. 

Agreement made public. 1036, 

Election. 1037. 

Tickets. 1038. 
Report of election— Annexation. 1039. 

Name. 1040. 

Name. 1041. 

Effect of union. 1042. 

Property and debts. 1043. 
Annexing territoiy in adjoining 1044. 

counties. 1045. 

Survey and plat. 1046. 
Notice of petition. 

Action of trustees or council. 1047. 

Effect of annexation. 1048. 
Jurisdiction — Taxes. 
Appeal from county board. 



Auditor's duty. 

Trial. 

Effect of appeal. 

Disannexing territory. 

Vacation of lots, streets and alleys. 

Disannexing territory. 

Survey and plat. 

Survey and plat. 

To be kept by the city clerk. 

Law appJies to towns. 

Additions to cities and towns — Plats. 

Penalty. 

Plats — Submission for approval — Re- 
cording—Penalty. 

Legalized plats. 

Plats of additions to cities and towns 
legalized. 



ARTICLE 3.-TAXATI0N. 



Bank stock. 
Auditor's duty. 
Auditor's statement. 
Assessment. 
Collection of taxes. 
Tax, a lien. 

Bank stock, how valued. 
Assessment. 



1057. State tax-law to govern — Proviso. 

1058. Non-resident's personal property. 

1059. County treasurer — Surplus gravel road 

or railroad aid tax. 

1060. Levy and collection of taxes in cities 

and towns of less than seventy 
thousand. 



ARTICLE 4.— WATER-WORKS. 



May issue w^ater-works bonds — Vote. 

Location and condemnation. 

Assessment and report. 

Tender of damages. 

Appeal. 

Trustees of water- works. 

Purchase of water-works — Valua- 
tion . 

Purchase subject to mortgage. 

Bond — May issue. 

Taxation for extensions, payment 
of bonds, mortgage, etc. 

Control of. 

Trustees abolished in certain cities 
and towns. 

Control of water-works by city or 
town. 

ARTICLE 5 

Local sewers. 
General sewers. 

Assessments for sewers in cities and 
towns. 



1074. Duties and pay of trustees. 

1075. By-laws and rules. 

1076. Water rents. 

1077. Application of fund. 

1078. Reports. 

1079. Funds, how kept. 

1080. Contracts. 

1081. Investigating committee. 

1082. Water free for public uses. 

1083. Attachments regulated. 

1084. Advertising, 

1085. Bonds. 

1086. Tax to pay loans. 

1087. Lien of tax. 

1088. Preventing pollution. 

1089. Bonds to pay for stock in water- works 

companies. 

-SEWERS. 

1093. Construction of sewers — Condemna- 

tion of land for. 

1094. Ditches and drains under drainage 

laws. 

1095. May convert into sewers. 



ARTICLE 6.— CEMETERIES. 



Conveyance by county board. 1102. 

Control. 1103. 

Power to protect. 1104. 

May vacate. 1105. 

Petition and finding. 1106. 
New cemeteries — Expense of re- 
moval. 



Removal and re-interment. 
Title not affected. 

Appropriation of lands for cemetery. 
Appraisers, 

Report — Exceptions — Trial — Pay- 
ment. 



TABLE OF CONTENTS. XIX 

[Beferenccs are to Sections.'] 
ARTICLE 7.— STEEET IMPROVEMENTS. 

1107. Petitions for street improvements — 1120. Cost of improvements — Apportion- 

Procedure. ment — Cities less than 6910, etc. 

1108. Resolution of necessity — Notice to 1121. Act supplemental. 

objectors. 1122. Sidewalk improvements — Certain cit- 

1109. Apportionment of costs — Liens — ies. 

Sale. 1123. Grade— Contract— Terms. 

1110. Allowance to owner who has im- 1124. Notice. 

proved— Bonds. 1125. Contract to lowest bidder. 

1111. Estimates — How paid — Liens. 1126. Assessments — How collected -^Fore- 

1112. Final estimate of costs — Report of closure. 

engineer. 1127. Contractor's receipt. 

1113. Notice of hearing — Assessments — 1128. Change of grade. 

Liens — Payment in installments. 1129. Improvements under other laws. 

1114. All persons may pay by installments. 1130. Street improvements in towns and 

1115. Street and sewer bonds — Lien. cities of less than 12,000. 

1116. Certificates to contractor — Collect- 1131. Cleaning streets and alleys. 

ing assessments — Foreclosure. 1132. Actions to enforce improvement as- 

1117. Precept for sale — Appeal — Sale and sessments — Notice. 

conveyance. 1133. Attorneys' fees — Amount. 

1118. Act not to apply to cities of one 1134. Owner may recover illegal fees and 

hundred thousand. penalty. 

1119. Estimates — Contractors to satisfy of 1135. Misdemeanor — Penalty. 

record. 

ARTICLE 8.— PUBLIC LIGHTS. 

1136. Power of council or trustees as to 1138. Right to maintain may be granted. 

light. 1139. Existing contracts valid. 

1137. Poles and wires in streets. 1140. Right of way. 

ARTICLE 9.— NATURAL GAS— LICENSE. 

1141. Regulation of natural gas — License. 

ARTICLE 10.— PUBLIC PARKS. 

1142. Establishing parks — Condemnation 1145. Action on report — Appeal. 

of lands. 1146. Rules for laying out, etc. 

1143. Assessing damages— Report. 1147. Park tax — Issue of bonds. 

1144. Payment of damages. 

ARTICLE 11.— PAWNBROKERS. 

1148. Pawnbrokers — License and regulating. 

ARTICLE 12.— RAILROADS, RIGHT OF WAY. 

1149. Right of way by cities and towns. 

ARTICLE 13.— FIRE COMPANIES. 

1150. Exemption from juries and militia. 1152. Exemption from city tax. 

1151. Act cumulative. 

ARTICLE 14.— BOARDS OF HEALTH. 

1153. Local boards of health — Secretary — 1155. Births — Deaths — Contagious dis- 

Compensation and duties — Re- eases — Burial permits, 

movals. 1156. Misdemeanors — Penalty. 

1154. Secretary — Duties. 



XX 



TABLE OF CONTENTS. 
\_Beferences are to Sections.'] 



CHAPTER 7. 

TOWNS. 

ARTICLE 1.— INCOEPORATION AND ORGANIZATION. 



1157. Survey and map. 1171. 

1158. Census. 1172. 

1159. Survey, map, and census made pub- 1173. 

lie. 1174. 

1160. Application to county board. 1175. 

1161. Hearing and order. 1176. 

1162. Notice to voters. 1177. 

1163. Polls, how long open. 1178. 

1164. Board of election. 1179. 

1165. Election, and effect thereof. 1180. 

1166. Districts. 

1167. Re-districting. 1181. 

1168. Notice of corporation election. 1182. 

1169. Annual election. 1183. 

1170. Voting place. 1184. 



Polls — Opening and closing. 
Inspector's duties. 
Officers to be elected. 
Who elected— Tie — Certificate. 
Clerk's duty. 

Trustees, how elected — Term. 
Vacancies. 
President — Oath, 
Corporate name. 

Order of incorporation, when con- 
clusive. 

How old town may incorporate. 
Debts not affected. 
Dissolution of town — Proceedings. 
Rights and contracts not affected. 



ARTICLE 2.— GOVERNMENT AND POWERS. 



1185. Official bonds. 1214. 

1186. Books, etc., to successor. 1215. 

1187. Duties of treasurer. 1216. 

1188. Publication of treasurer's settle- 1217. 

ment. 

1189. Duties of clerk. 

1190. Marshal. 

1191. Marshal. 

1192. Powers of marshal— Fees. 1218. 

1193. Deputy marshals, 1219. 

1194. Bond and compensation, 1220, 

1195. Duties of trustees as to streets. 1221. 

1196. Firewardens. 1222. 

1197. Pay of officers. 

1198. Town suing— Proof. 1223. 

1199. Special meeting of voters. 1224. 

1200. Powers of trustees. 1225. 

1201. Licensing and regulating business. 1226. 

1202. Shade trees. 

1203. Fire hmits, 1227, 

1204. Lighting streets. 1228. 

1205. Tax forlighting. 1229. 

1206. Tax to pay for electric lights. 1230. 
.1207. Electric light plant— Construction. 1231. 

1208. Committee to ascertain number of 1232. 

lights. 1233. 

1209. Report— Action of board. 1234. 

1210. Advertising for proposals — Bids. 1235, 

1211. Letting of contract. 1236, 

1212. Bonds— Issue and sale. 1237. 

1213. Superintendent. 

ARTICLE 3. 

1238. Annual tax, when fixed. 1244, 

1239. Tax lew. 1245. 

1240. Warrant for collection. 1246. 

1241. Appraisement of real estate in cer- 1247. 

tain cases. 1248. 

1242. Duty of countv auditor. 1249. 

1243. Tax, how collected. 



Tax to pay bonds. 

Sale of lights. 

Increase of capacity of plant. 

Water-works, lighting plant, street 
railroad, telephone and telegraph 
companies — Franchises and con- 
tracts — Ordinances for — When take 
effect — Referendum. 

Petition to submit to voters. 

Contents of petition. 

Special election — When required. 

When submitted at regular election. 

Majority of votes cast necessary for 
approval — Re-enactment, 

Notice of election. 

Ballots. 

Penalty for making false affidavits. 

Penalty for town officer failing to 
comply. 

Election laws apply. 

Public grounds and wharves. 

IMoney, how appropriated. 

Claims. 

^loney, how drawn. 

Loans. 

Bonds. 

Proceeds paid treasurer. 

Tax to pay interest. 

Fines. 

Suits — Imprisonment. 



-TAXATION. 



Redemption of real estate. 

Duplicate to auditor. 

County treasurer to collect. 

Road tax. 

Levy of road tax. 

Tax to pay for water-works. 



TABLE OF CONTENTS. 



XXI 



lEfferences are to Sections.'] 
ARTICLE 4.— IMPROVEMENT OF STREETS. 



1250. Sidewalks. 

1251. Requisites of sidewalk ordinance. 

1252. Owner failing, town makes. 

1253. Cost, how recovered. 



1254. Street improvement. 

1255. Street improvement. 

1256. Cost, how apportioned. 
1267. Cost, how collected. 



ARTICLE 5.— OPENINGS AND VACATIONS. 



1258. 


Power over streets, bridges, etc. 


1269. 


Penalty. 


1259. 


Opening streets. 


1270. 


Imperfect plat. 


1260. 


Duty of commissioners. 


1271. 


Vacation. 


1261. 


Tender of damages. 


1272. 


Proceedings concerning vacation. 


1262. 


Assessment — Collection. 


1273. 


Title on vacation. 


1263. 


Action on report — ^ Appeal. 


1274. 


No vacation, unless owners consent. 


1264. 


Infants and insane. 


1275. 


Additions, how vacated. 


1265. 


Opening and improving streets. 


1276. 


Change of name. 


1266. 


Record of plats. 


1277. 


Vacation of unused public square. 


1267. 


Donation by plat. 


1278. 


Public square— School. 


1268. 


Plat, how acknowledged. 


1279. 


Action by county board. 




ARTICLE 6.— ANNEXATION OF TERRITORY. 


1280. 


Of lots and out-lots. 


1282. 


Duty of county board. 


1281. 


Of lands not platted. 


1283. 


Lost plat. 




ARTICLE 7.— SEWERS. 


1284. 


Power over sewers. 


1291. 


Penalty for non-payment. 


1285. 


Proceedings to establish and con- 1292. 


Payment, how enforced. 




struct. 


1293. 


Ofiicers' fees. 


1286. 


Order to appraisers. 


1294. 


Superintendent— Engineer. 


1287. 


Majority may act. 


1295. 


Town may pay part of cost. 


1288. 


Schedule filed— Construction. 


1296. 


Terms of letting. 


1289. 


Apportionment of cost. 


1297. 


Protection of sewer— Tapping. 


1290. 


Collection of cost. 


1298. 


Intention of act. 




ARTICLE 8.- 


-TOWN 


BUILDING. 


1299. 


May be incorporated. 


1304. 


When incorporated. 


1300. 


Notice. 


1305. 


Powers. 


1301. 


Written statement. 


1306. 


Records— Evidence. 


1302. 


Statement to be recorded. 


1307. 


Trustees may convey. 


1303. 


Twenty may organize. 







CHAPTER a 
MISCELLANEOUS STATUTES AND PROVISIONS. 



ARTICLE 1.— HIGHWAYS— STREETS. 



1308. Notice and duty of viewers— High- 

way on boundary line of city or 
town. 

1309. Petition by abutting owners. 

1310. Action on petition. 



1311. Power of petitioners. 

1312. Exemption from work on highways. 

1313. Incorporated towns. 

1314. Towns and cities — Residents exempt, 

1315. Cities may pay. 



ARTICLE 2.— RAILROADS. 



1316. Railroad street crossing — Grading. 1319. 

1317. Failure to obey notice— Penalty. 1320. 

1318. Action to recoVer penalties. 



Disposition of penalties. 
Work may be done at expense 
company. 



of 



XXll 



TABLE OF CONTENTS. 



{^liejerences are to Sect ions. 1 



1321. Public use of railroad right of 

and depot grounds — Effect. 

1322. Union roads. 

1323. Union railway company. 

1324. Certificate of incorporation. 

1325. How signed and attested. 



w^ay 1326. Rights as owner or lessee. 

1327. Powers. 

1328. Condemnations. 

1329. Streets and alleys — How vacated. 

1330. Liabihties. 

1331. Lights at street crossings. 



ARTICLE 3.— STREET RAILWAYS. 



1332. 



1333. 

1334. 

1335. 
1336. 
1337. 
1338. 
1339. 
1340. 
1341. 
1342. 
1343. 
1344. 



1345. 
1346. 

1347. 

1348. 
1349. 



Construction of tracks — Use of by 1350. 

other companies, cities of 35,000. 1351. 
Construction of tracks — Use of by 

other companies, cities of 100,000. 1352. 
Street improvements, time for pay- 
ment. 1353. 
Bonds to secure payment. 1354. 
Acceptance by stockholders. 1355. 
Lien of bonds. 

Default in payment, collection. 1356. 

New bonds in lieu of old. 1357. 

Iviability of city or town. 1358. 
By-laws — Rates of fare — Penalty. 

Charging unlawful fare, penalty. 1359. 

Refusal to transfer, penalty. 1360. 
Municipal control of street railways 

— Termination of franchise, pro- 1361. 

ceedings. 

In cities of more than 100,000— Con- 1362. 

tract with city. 1363. 

Terms, conditions and period of con- 1364. 

tract — Methods of propulsion — 1365. 

Extension of lines — Use of tracks 1366. 

by other companies — Forfeiture. 1367. 

Terms binding during hfe of con- 1368. 

tract. 1369. 

May acquire other franchises. 1370. 
May sell and convey property. 



Remedy of dissatisfied shareholders. 

Rights of creditors — Liens — Unim- 
paired. 

Period of contract — Removal of tracks 
— Free competition. 

Exclusive powers over streets, etc. 

Penalty for charging excessive fares. 

Extension beyond city or town — Con- 
sent of county board. 

Consent of gravel road company. 

Protection and regulation. 

Track on highway — Agreement — Pro- 
viso. 

Use of electric power. 

Street railway companies furnishing 
light, heat and power. 

Conveying and encumbering prop- 
erty. 

Consolidation of companies. 

Resolution recorded. 

Connections. 

Concerning completion of lines. 

Rights and privileges. 

Intersecting and joining other roads. 

Contracts and agreements. 

Heating of street cars. 

Penalty. 



ARTICLE 4.— GAS AND WATER COMPANIES. 



1371. Marine railways — Gas pipes. 1375. 

1372. Gas and water-works companies. 1376. 

1373. Completion of unfinished canals — 1377. 

Purposes — Record. 1378. 

1374. Right of way. 1379. 



Power of directors. 

Effect of act. 

Water- works companies — Powers. 

Consent of town necessary. 

Existing companies. 



1380. 
1381. 



ARTICLE 5.— TELEPHONE COMPANIES. 



Seal — Powers. 
Powers. 



1382. Duty to supply applicants impar- 
tially. 



ARTICLE 6.— CRIMES AND MISDEMEANORS. 



1383. Crimes not punishable by city or 1394. 

town. 1395. 

1384. Driving on sidewalk. 1396. 

1385. Misdemeanor. 

1386. Vehicles not to stand on street. 1397. 

1387. Obstructing highway, etc. 1398. 

1388. Obstructing highway with cars. 1399. 

1389. Obstructing highway. 1400. 

1390. Failing to give signals. 1401. 

1391. Signals at crossings. 1402. 

1392. Penalty for failure. 

1393. Suits for. 1403. 



Damages. 

Penalty to school fund. 

Railroad company to destroy weeds 
and thistles. 

Failure — Action of debt. 

Waiting-rooms. 

Penalty. 

Waiting-rooms and closets. 

Penalty. 

Street railway prohibited— Monu- 
ment place. 

Vestibule street cars. 



TABLE OF CONTENTS. 



XXIU 



\_Beferences are to iSectious.^ 



1404. Violating act, penalty. 1421. 

1405. Penalty for selling or offering to sell 

vote.' 1422. 

1406. Reward for conviction. 1423. 

1407. Acts repealed. _ 

1408. Prosecutions — i^imitation. 1424. 

1409. Stealing public records. 1425. 

1410. Oriicer stealing or destroying rec- 1426. 

ords. 1427. 

1411. Altering records. 1428. 

1412. Embezzlement of public funds. 

1413. Embezzlement by officers. 1429. 

1414. Embezzlement by treasurers. 1430. 

1415. Embezzlement of public funds. 

1416. Briberv of public officers. 1431. 

1417. Bribery of officer. 1432. 

1418. Presenting false claim. 1433. 

1419. Officer acting without qualifying. 1434, 

1420. Officer interested in public contracts. 1435. 

1436. 



Breaking quorum in common coun- 
cil. 

Conviction of felony vacates office. 

Injuring telegraph or telephone 
poles or wires. 

Telephone disclosure. 

Not providing fire escape. 

Not providing out-swinging doors. 

Running horses in towns. 

Interfering with electric plants — 
Penalty. 

Altering gas connections. 

Making gas connections without 
consent. 

Refusal to deliver gas mixtures. 

Setting fire to gas. 

Penalty. 

Natural gas — Preventing w^aste. 

Jumbo burners — When lighted. 

Penalty. 



ARTICLE 



-PRISONS— POLICE MATRON— STOLEN PROPERTY 



1437. County boards may establish work- 1453. 

house. 1454. 

1438. Superintendent. 1455. 

1439. Commitment. 1456. 

1440. Transfer from jail. 1457. 

1441. Prisoners kept at labor. ^ 1458. 

1442. Cities and towns may commit. 1459. 

1443. Quarterly reports — Receipts — Ex- 1460. 

penses. 

1444. Inspection by grand jury. 1461. 

1445. Visitation. 1462. 

1446. Duties of county physician and su- 1463. 

perintendent. 

1447. Use of city or town work-house. 1464. 

1448. Punishment of prisoners. 1465, 

1449. Credit for work. 1466. 

1450. When females may be sentenced. 1467. 

1451. Trustees to enforce judgment. 1468. 

1452. Inspection. 



Fines for lewdness. 

Fines for gambling. 

Proceeds of forfeited recognizances. 

Mayor's accounts — Statements. 

Reports. 

Police matron in certain cities. 

Authority of matron — Removal. 

Accommodations— Acts as jailer — 

Salary. 
Attendance in courts. 
Qualifications — Recommendations. 
Stolen property received by police 

officer— Disposition . 
Sale of unclaimed property. 
Perishable property — Sale of. 
Proceeds of sale — Disposition of. 
Payment to owner of property. 
When act not applicable. 



1469. Protection from fire — Egress from 

buildings. 

1470. Fire escapes. 

1471. Fire escape — Approval by inspec- 

tor. 



ARTICLE 8.— PROTECTION FROM FIRE. 

Lights— Electric bells, 



1472. Watchmen- 

etc. 

1473. Chain and knotted rope. 

1474. Penalty. 

1475. Chief inspector — Duties. 



ARTICLE 9.— FIREMEN'S PENSION FUND. 



1476. Board of trustees — Cities included 1484. 

in act. 1485. 

1477. Trustees— Composition of board — 1486. 

By-1 aws — ath s . 

1478. Fire company defined. 1487. 

1479. Selection of trustees, 1488. 

1480. Elections— Time— Terms— Mode of 1489. 

election, 1490, 

1481. Officers-Election— Duties— Rules, 1491. 

1482. Pension fund— What constitutes. 1492. 

1483. Investment of funds — Accounts — 

Bond of president — Reports = 



Beneficiaries, who are. 
Deficiency — Pro rata payments. 
Amount paid — Retiring members — 
Payments to dependents. 
Pensioners under former laws. 
Re-examination of retired members. 
Warrants for money. 
Exemption of fund's from seizure. 
Custodian of funds — Liability. 
Acts repealed — Saving clause. 



XXIV 



TABLE OF CONTENTS. 



llieferences are to Sections.'] 
ARTICLE 10.— POLICEMEN'S PENSION FUND. 
1500. 



1493. Police pension fund — Trustees — 

Terms of office. 

1494. Powers of board of trustees. 1501. 

1495. Mayor — President. 

1496. Duties of officers— President— 1502. 

Treasurer — Secretary. 1503. 

1497. Sources from which fund is derived. 1504. 

1498. Investment of funds. 1505. 

1499. Purposes for which fund shall be 

used — Pensions. 1506. 



Retired members subject to orders 
of superintendent. 

Duties of police surgeon — Examina- 
tions. 

Payment of claims. 

Time and place of payment. 

Pensions exempt. 

Penalty for failure to account for 
funds. 

Pensions discontinued for offenses 
and misconduct. 



ARTICLE 11.— EDUCATION. 



1507. Towns and cities. 1526. 

1508. School trustees in cities and towns. 1527. 

1509. Duties of school trustees — Graded 

high schools. 1528. 

1510. Term of school. 

1511. Management of school property. 1529. 

1512. Schools, control of in certain towns. 1530. 

1513. Town may abandon control of 1531. 

schools. 

1514. Property conveyed to township. 1532. 

1515. Control by township trustee. 1533. 

1516. Surplus special school revenue in 1534. 

cities and towns. 1535. 

1517. Tax — Collection and payment. 1536. 

1518. Bonds for school buildings. 1537. 

1519. Use of proceeds. 1538. 

1520. Special tax. 1539. 

1521. Condition before building. 1540. 

1522. Surplus special school revenue. 1541. 

1523. Title to school property. 1542. 

1524. Annexation of territory — Title to 1543. 

school property. 1544. 

1525. Annexation — Reimbursement of 

school to^Tiship. 



Suits, how brought. 

Donations by counties, cities or 
towns to state university. 

Agreements and conditions of dona- 
tion. 

Bonds, issue, sale. 

Only one donation. 

Aid to educational institutions — Pe- 
tition. 

Appropriating money — Election. 

Notice. 

Election to conform to general laws. 

Form of ballot. 

Certificate of vote. 

Board of canvassers — Duties. 

Tax levy. 

Advancements. 

City may take stocjK. 

Election officers — Pay. 

Forfeiture of rights. 

Jurisdiction of circuit courts. 

Tax-f)ayers released. 



ARTICLE 12.— LIBRARIES. 



1545. How established. 1565. 

1546. Chairman and clerk. 1566. 

1547. Election of directors. 

1548. Statement. 1567. 

1549. To be recorded. 1568. 

1550. Powers. . 1569. 

1551. Banking forbidden. 1570. 

1552. Directors annually elected. 1571. 

1553. By-laws. 1572. 

1554. Seal — Assessments — Officers. 1573. 

1555. Quorum — Vacancies — Term. 1574. 

1556. Donations. 

1557. Stock. 1575. 

1558. Voting stock. 1576. 

1559. Museum. 

1560. Fines— Costs— Judgment without re- 1577. 

lief. 

1561. Corporations may take stock. 1578. 

1562. Cities may take stock. 1579. 

1563. Stock as prizes. 1580. 

1564. Dissolution— City to manage. 1581. 



Tax. 

Library by donations — Township 
library, transfer to. 

Library to revert to township. 

Library associations legalized. 

Public libraries — Tax — Directors. 

Tax limited. 

Tax levy by cities. 

Incorporation. 

Instrument of association. 

Recording — Powers — Exemption 
from taxation. 

Gallery of art — Reading room — Park. 

Public libraries — Free use of in cities 
of 19,700 to 20,000. 

Books and property of county li- 
brary. 

Care and maintenance. 

Property listed and labeled. 

Loan of library fund. 

Property reclaimed. 



TABLE OF CASES. 



[^Beferences are to Fages.'\ 



Abbott V. Edgerton, 63 Ind. 196, 216 

Adams v. Davis, 109 Ind. 10, 69, 86 

Adams v. Ohio, etc., 131 Ind. 375, 

134, 146, 227, 229, 798, 867 
Adams Express Co. v. Ohio, 165 XJ. S. 

194, 6, 18 

.Etna, etc.. Co v. Lyon County, 44 

Fed. Rep. 329, 52, 672 

Ah Kit, In re, 45 Fed. Rep. 793, 20, 21 

Aikman v. State, Ind. Sup. Ct., June 

14, 1899, 54, 55 

Alexander v. Town of New Castle, 115 

Ind. 51, 797, 801,804 

Allen V. Anderson, 57 Ind. 388, 27 

Allen V City of Vincennes, 25 Ind. 

531, ' 810, 815 

Allen V. Jones, 47 Ind. 438, 157. 165, 297 
Allen V Town of Salem, 10 App. 650, 

708, 788, 789, 791 
Ailev V. Citv of Lebanon, 146 Ind. 125, 

701, 708, 709, 710, 729 
Ambrose v. State, 6 Ind. 351, 

26, 81, 111, 205, 780, 866 
American, etc., Co. u. Town of Bates- 

vilie, 139 Ind. 77, 204, 764 

Arav V. Shelby Countv, etc.. District, 

114 U. S. 387, ' 9 

Amv V. Supervisors, 11 Wall. 136, 67 

Anderson v. Caldwell, 91 Ind. 451, 27, 29 
Anderson v. Citizens', etc., R. Co., 12 

App. 194, 272 

Anderson v Endicutt, 101 Ind. 539, 

153, 257 
Anderson v. Kerns Draining Co., 14 

Ind. 199, 45, 47, 206 



B 



Anderson v. Santa Anna, 116 U. S. 356, 
Andrews v. Russell, 7 Blackf. 474, 
Anthony v. Cooley, 61 Ind. 323, 
Anthony v. Sturgis, 86 Ind. 479, 
Anthony v. Williams, 47 Ind. 665, 

792 794 
Ard V. State, 114 Ind. 642, 
Argo V. Barthand, 80 Ind. 63, 
Armington v. State, 45 Ind. 10, 85, 

Armstrong v. State, 145 Ind. 609, 
Asher v. Texas, 128 U. S. 129, 
Astley V. Capron, 89 Ind. 167, 
Aurelius v. Lake Erie, etc., R. Co., 
Ind. Sup. Ct., March 16, 1898, 



115 

33 

794 

86 

795 
95 
253 
104 
875 
1, 2 
35 



Backus V. Fort Street, etc., Co., 169 

U. S. 557, 15 

Bailey v. Briant, 117 Ind. 362, 298 

Baker v. Kirk, 33 Ind. 517, 55 

Baker v. State, 27 Ind. 485, 69, 106 

Baker v. Tobin, 40 Ind. 310, 

62, 64, 275, 291, 292 
Baker v. Town of Shoals, 6 App. 319, 

89, 91, 257, 767, 
Baker v. Wambaugh, 99 Ind. 312, 
Balfe V. Johnson, 40 Ind. 235, 

284, 289, 290, 291, 
Balfe V. Lammers, 109 Ind. 347, 

124, 159, 289, 293, 294, 
Ball V. Balfe, 41 Ind. 221, 283, 285, 292, 
Ballard v. Citizens', etc., R. Co., 18 

App. 522, 
Baltimore v. Baltimore Trust & G. Co., 

166 U. S. 673, 
Baltimore v. Baltimore Trust & G. Co., 

167 U. S. 98, 
Baltimore, etc., R. Co. v. Conover, 149 

Ind. 524, 268,269,869, 

Baltimore, etc., R. Co. v. Ketring, 122 

Ind. 5, 
Baltimore, etc., R. Co. v. North, 103 

Ind. 486, 224, 

Baltimore, etc., R. Co. v. Walborn, 127 

Ind. 142, 869, 

Baltimore, etc., R. Co. v. Young, 146 

Ind. 374, 268, 

Bank v. Sarlls, 129 Ind. 201, 203, 383, 
Bank, etc., v. City of New Albany, 11 

Ind. 139, 45, 206, 

Bank of Commerce v. City of Louis- 
ville, 88 Fed. Rep. 398, 

97, 404, 492, 561, 
Bank of Commerce v. Wiltsie, Ind. 

Sup. Ct., May 23, 1899, 41 

Barber, etc., Co. v. Edgerton, 125 Ind. 

455, 25, 29, 253, 276, 282, 420, 708, 
711, 717, 719, 720, 729, 
Barbier v. Connolly, 113 U. S. 27, 16 
Barnard v. Sherley, 135 Ind. 547, 
Barnett v. Denison, 145 U. S. 135, 
Barron v. Baltimore, 7 Pet. 242, 
Bartemeyer v. Iowa, 18 Wall. 129, 
Burton y.^McWhinney, 85 Ind. 481, 



214; 



799 
69 

717 

730 

717 

251 

11 
11 

870 

27 

810 

870 

870 
476 

209 

631 

,48 

710 
823 
.20 
144 
172 
15 
, 23 
688 



(XXV) 



XXVI 



TABLE OF CASES. 



Bass V. City of Ft. V^'ayne, 121 Ind.389, 

30, 225, 253, 279, 300, 692, 693 
Bauer v. City of Indianapolis, 99 Ind. 

56, 238 

Bauman v. Ross, 167 U. S. 548, 19, 20, 28, 29 
Baamgartner v. Hasty, 100 Ind. 575, 

61, 117, 120, 121, 142, 144, 203, 204, 326 
328, 383, 476, 762 

Becker v. Baltimore, etc., R. Co., 17 

App. 324, 717, 721, 722 

Becknell v. Hosier, 10 App. 5, 251 

Beer Co. v. Massachusetts, 97 U. S. 25, 22 
Begein v. City of Anderson, 28 Ind. 79, 

126, 203, 703 

Belling v. City of Evansville, 144 Ind. 

644, 122, 127, 384, 462, 476, 764 

Bell V. Maish, 137 Ind. 226, 40, 42 

Bellingham Bav, etc., Co. v. New What- 
com, 172 U. S. 314, 20 
Benjamin v. Webster, 100 Ind. 15, 204, 327 
Bennett v. Seibert, 10 App. 369, 

282, 290, 355, 356, 742, 743 
Benton v. Hamilton, 110 Ind. 294, 

113, 277, 754, 758, 763, 779, 793 
Berkey v. Citv of Elkhart, 141 Ind. 408, 

77, 79, 80 

Berkey v. City of Elkhart, 13 App. 314, 77 
Bessonies v. "^City of Indianapolis, 71 

Ind. 189, 32, 123, 126, 144, ':04 

Bidinger v. Bishop, 76 Ind. 244, 

219, 220, 767 
Bier v. McGehee, 148 IJ. S. 137, 10 

Biegs V. Board, etc., 7 App. 142, 44 

Bills V. Citv of Goshen. 117 Ind. 221, 

32, 81, 110, 111, 120, 121, 123, 133 
Bishop V. Moorman, 98 Ind. 1, 
Bishop V. State, 149 Ind. 223, 
Bittinger v. Bell, 65 Ind. 445, 
Blaine v. Bailey, 25 Ind. 165, 
Blair v. Kiger,'lll Ind. 193, 
Blake v. McClung, 172 U. S. 239 



IBeferences are to Pages.'] 

Board, etc., v. Chissom, 7 Ind. 688, 

79, 83, 163, 
Board, etc., v. City of Lafavette, 7Ind. 

614, 
Board, etc., v. City of Washington, 141 

Ind. 187, 148, 248, 249, 

Board, etc., v. Davis, 136 Ind. 503, 
Board, etc., v. Ft. Wayne, etc., Co., 17 

^pp. 36 

V 



Board, etc., 
Board, etc.. 
Board, etc., 

296, 
Board, etc.. 
Board, etc., 



248, 
Graham, 98 Ind. 279, 
V. Harrell, 147 Ind. 500, 
V. Howard, 83 Fed. Rep. 



V. Huff, 91 Ind. 333, 
V. Indianapolis, etc., Co., 
134 Ind. 209, 223, 259, 

Board, etc., v. Johnson, 31 Ind. 463, 
Board, etc., v. Justice, 133 Ind. 89, 

300, 
Board, etc., v. Karp, 90 Ind. 236, 
Board, etc., v. Kreuger, 88 Ind. 231, 
Board, etc., v. Leggett, 115 Ind. 544, 
Board, etc., v. Loeb, 68 Ind. 29, 27, 
Board, etc., v. Norrington, 82 Ind. 190, 
Board, etc., v. O'Connor, 86 Ind 531, 
Board, etc., v. Pearson, 120 Ind. 426, 

234, 
Board, etc., v. Pearson, 129 Ind. 456, 
Board, etc., v. Schrader, 36 Ind. 87, 
282, 792, 795, 
Board, etc., v. Silvers, 22 Ind. 491, 
116, 163, 277, 
Board, etc., v. State, 61 Ind. 379, 
Board, etc., v. State, 129 Ind. 42, 
Board, etc., V. State. 147 Ind. 476, 28.41, 
989 Board, etc., v. Templer, 34 Ind. 322, 
"37 Board, etc., v. Wagner, 138 Ind. 609, 
4g 199 Board, etc., v. Washington Tp.. 121 
210i 687 ^ncl- 379, 148, 149, 248, 

859 Board, etc., v. Wasson, 74 Ind. 133, 
16 I 103, 115, 

Blakemore v. Dolan, 50 Ind. 194, 861, 909 ; Boaz v. Tate, 43 Ind. 60, 94 

Bloch ?;. Isham, 28 Ind. 37, 149 | Bocard v. State, 79 Ind. 270, 

Blue i\ Briggs, 12 App. 105, 762, 799 j Bogartv. Citv of New Albanv, 1 Ind. 38, 

Blumenthal v. State, 21 App. 665, 221, 270 i Bogert v. City of Indianapolis, 13 Ind. 
Board, etc., v. ^tna, etc., Co., 90 Fed. j 134, 126, 

Rep. 222, 173 | Bohrer v. Dienhart, etc., Co., 19 App.' 

Board, etc., v. Allman, 142 Ind. 573, 248 j 489, 

Board, etc., v, Armstrong, 91 Ind. 528, 212 j Bolles v. Brimfield, 120 U. S. 759, 
Board, etc., v. Bacon, 96 Ind. 31, 234, 800 { Bonebrake v. Board, etc., 141 Ind. 62, 
Board, etc., v. Baily, 122 Ind. 46, 113, 258 I B. & O. Railroads. Baugh, 149 U.S. 368, 
Board, etc., v. Benson, 83 Ind. 469, 69 Boston Bur Co. r. Massachusetts, 97 V. 

Board, etc., v. Blake, 21 Ind. 32, 28 s. 25, 

Board, etc., v. Bonebrake, 146 Ind. 1 Bowdetch v. Boston, 101 U. S. 16, 

311, 248, 250 I Bowlus v. Phenix Ins. Co., 133 Ind. 106, 

Board, etc., v. Bright, 18 Ind. 93, 171, 777 \ Bowman v. Chicago, etc., R. Co., 125 
Board, etc., v. Brod, 3 App. 585, 149 XJ. S. 465, 

Board, etc., v. Castetter, 7 App. 309, 113 Boycr^'. Alabama, 94 U. s. 645, 
Board, etc., v. Center Tp., 143 Ind. 391, Bovd v. Murphy, 127 Ind. 174. 277, 

34, 389, 908, 916 | Bovd v. United States, 116 U. S. 616, 



669 
83 

806 
42 

859 
212 

52 

51 
221 

862 
28 

709 
324 
131 
107 
253 
119 
119 

800 
238 



Board, etc., v. Chapman, Ind. App. Ct. 

Oct. 5, 1898, 
Board, etc., v. Chipps, 131 Ind. 56, 



Boyer V. State, 16 Ind. 451, 
34 I Bozarth v. Mailett, 11 App. 417, 
L49 ^ 721, 722, 



294 

349 
107 
206 
28 
113 

249 



95 

104 

80 

703 

262 
115 
248 
115 

12 
328 
174 

7 
12 

292 
24 

218 

729 



TABLE OF CASES, 



XXVll 



528 


2 


5. 289, 


2,3 


423,, 


35 




149 



Bozarth v. McGillicaddv, 19 App. 26, 

27, 427, 709. 710, 711. 714, 720, 721, 722 

723, 729 
Braden v. Leibensuth, 126 Ind. 336, 

908, 917 
Braden v. McXutt, 114 Ind. 214, 253 

Bradley v. Citv of Frankfort, 99 Ind. 

417. ' ' 296. 300, 301, 310 

Branson v. Studebaker, 133 Ind. 147, 251 
Brashear v. City of Madison, 142 Ind. 

685, ' 50, 51 

Brechbill r. Randall. 102 Ind. 
Brennan v. Titusyille, 153 U. t 
Brewer v. McCieland, 144 Ind 
Briggs V. Klosse, 5 Apo. 129, 
Bright V. McCalloLigh, 27 Ind. 223, 

41, 46, 47, 206 
Brimmer v. Rebman, 138 U. S. 78, 1, 4 

Brinkmeyer v. City of Evansville, 29 

Ind. 187, ' 61, 107, 144, 326 

Brocaw v. Board, etc., 73 Ind. 543, 

31, 48, 57, 196, 197, 199, 861 
Brocaw v. City of Terre Haute, 97 Ind. 

451, ' 305, 310 

Broker v. City of New Aibany, 12 Ind. 

417, " 285 

Bronnenberg v. Coburn, 100 Ind. 169, 95 
B.rookbank v. City of Jeffersonville, 41 

Ind. 406, 41, 28S, 291, 292, 293 

Brooks V. Riding, 46 Ind. 15, 229 

Brookville, etc., Co. v. Butler, 91 Ind. 

134, 859 

Broughton v. Pensacola, 93 U. S. 266, 9 
Brown v. Goben, 122 Ind. 113, 38, 45, 68 
Brown v. Hines, 16 App. 1, 222, 812 

Brown v. Houston, 114 U. S. 622, 630, 7 
Brown v. Maryland, 12 Wheat. 419, 3 

Brown u. State, 78 Ind. 239, 104 

Brucker-?;. Town of Covington, 69 Ind, 

33, 240, 802, 803 

Brvson v. McCreary, 102 Ind. 1, 33 

Buchanan v. Litchfield, 102 U. S. 278, 

50, 51, 52 
Bucher v. Citv of South Bend, 20 App. 

177, ' 241 

Buck V. Miller, 147 Ind. 586, 

207, 208, 210, 783, 784 
Bud V. New York, 143 U. S. 517, 16 

Budd V. Kraus, 79 Ind. 137, 

277, 292, 793, 795, 799 
Burkam v. Ohio, etc., R. Co., 122 Ind. 

344, 247, 254, 259, 262, 263, 264, 265, 798 
Burke v. Lukens, 12 App. 648, 714 

Burr V. Town of New Castle, 49 Ind. 322, 

767, 788, 791, 800 
Burt V. Hasselman, 139 Ind. 196, 294 

Buscher v. City of Lafayette, 8 App. 

590, 230, 233, 234, 242 

Busenbark v. Clements, Ind. App. Ct., 

April 25, 1899, 277 

Bush V. City of Indianapolis, 120 Ind. 

476, 31, 131, 669, 766 

Butchers' Union v. Crescent City Co., 

Ill U. S. 746, 9, 12 



lliefercnces are to Pages.l 

Bybee i\ State 



94 Ind. 443, 
226, 246, 768, 867, 868, 869 
Byer v. Town of New Castle, 124 Ind. 86, 

84, 109, 759, 808, 809 
Byram v. Board, etc., 145 Ind. 240, 

210, 227 
Byram v. Foley, 17 App. 629, 429, 430 



Cairo v. Zane, 149 U. S. 122, 172 

Caldwell v. Texas, 137 U. S. 692, 20 

Callan v. AVilson, 127 U, S. 540, 27 

Campbell v. Dwiggins, etc., 83 Ind. 473, 

25, 29, 57 
Cardwell v. American Bridge Co., 113 

U. S. 205, 8 

Carey v. Sheets, 67 Ind. 375, 24 

Carmichael v. Lawrence, 47 Ind. 554, 917 
Carr v. Boone, 108 Ind. 241, 301 

Carr v. McCampbell, 61 Ind. 97, 57 

Carrv. Town of Fowler, 74 Ind. 590, 61, 766 
Carroll v. Green, 148 Ind. 362, 36 

Carskaddon v. City of South Bend, 141 

Ind. 596, 164 

Carskaddon v. Mills, 5 App. 22, 261 

Carson v. McPhetridge, 15 Ind. 327, 45 
Carson v. State, 27 Ind. 465, 916 

Carson v. State, 145 Ind. 348, 72 

Carter v, Edwards, 16 Ind. 238, 77 

Carthage Turnpike Co. v. Andrews, 

102 Ind. 138, 252 

Case V. Fowler, 65 Ind. 29, 277, 792 

Case V. Johnson, 70 Ind. 31, 277, 792 

Case V. Johnson, 91 Ind. 477, 

113, 277, 754, 758, 763, 792, 793, 794, 879 
Caskey v. City of Greensburgh, 78 Ind. 

233, 296, 301, 303, 310, 311 

Cason V. Harrison, 135 Ind. 330, 198 

Catterlin v. City of Frankfort, 87 Ind. 

45, 318, 322, 323, 324, 720, 819 

Catterlin v. City of Frankfort, 79 Ind. 

547, ' 252 

Central, etc., Co. v. Bradbury, 106 Ind. 

1, 863, 864 

Central, etc., Co. v. Fehring, 146 Ind. 

189, 227, 863, 864 

Central, etc., Co. v. State, 118 Ind. 

194, 863, 864, 865 

Central, etc., Co. v. State, 123 Ind. 113, 864 
Central, etc., Co, v. Swoveland, 14 App. 

341, 863, 864 

Central Trust Co. of N. Y. v. Citizens' 

St. R. Co., 82 Fed. Rep. 1, 

42, 49, 370, 843, 853 
Chamberlain v. City of Evansville, 77 

Ind. 542, 84, 109, 121, 462 

Chambers v. State, 127 Ind. 365, 

37, 44, 45, 84, 107, 910 
Champer v. Citv of Greencastle, 138 

Ind. 339, *115, 122, 123, 132, 766, 769 

Chandler v. City of Kokomo, 137 Ind. 

295, " 317, 321, 322, 324, 679, 819 



XXVlll 



TABLE OF CASES. 



Chapin v. Osborn, 29 Ind. 99, 284, 288 

Charlotte, etc., K. Co. v, Gibbes, 142 

U. S. 386, 16 

Cheek v. City of Aurora, 92 Ind. 107, 

229, 230, 260, 298 
Cheezem v. State, 2 Ind. 149, 782 

Cheny v. City of Shelbvville, 19 Ind. 84, 80 
Chicago V. Taylor, 12o U. S. 161, 30 

Chicago, etc., R. Co. v. Boggs, 101 Ind. 

522, 152, 869 

Chicago, etc., R. Co. v. Chicago, 166 

U. S. 226, 12, 15, 16, 17, 29, 196 

Chicago, etc., R. Co. v. City of Hunt- 
ington, 149 Ind. 518, 708, 729 
Chicago, etc., R. Co. v. Cummin gs, Ind. 

App. Ct., May 24, 1899, 268 

Chicago, etc., R. Co. v. Eisert, 127 Ind. 

156, 260, 263 

Chicago, etc., R. Co v. Fenn, 3 App. 

250, 869 

Chicago, etc., R. Co. v. Hammond, 

etc., R. Co., 151 Ind. 577, 263 

Chicago, etc., R. Co. v. Hedges, 118 

Ind. 5, 269, 831 

Chicago, etc., R. Co. v. Hunter, 128 

Ind. 213, 263 

Chicago, etc., R. Co. v. Lee, 17 App, 

215, 238 

Chicago, etc., R. Co. v. Nebraska, 170 

U. S. 57, 11, 266, 385, 476 

Chicago, etc.,R. Co. v. Spilker, 134 Ind. 

380, 151 

Chicago, etc., R. Co. v. Sutton, 130 Ind. 

405, 806, 827 

Chicago, etc., R. Co. v. Thomas, 147 

Ind. 35, 268 

Chicago, etc., R. Co. v. Whiting, etc., 

R. Co., 139 Ind. 297, 29, 263, 839, 854 
Chilton V. Town of Gratton, 82 Fed. 

Rep. 873, 51, 175, 479 

Church V. Kelsey, 121 U. S. 282, 23 

Church V. Town of Knightstown, 35 

Ind. 177, 324 

Churchman v. City of Indianapolis, 

110 Ind. 259, 

116, 120, 212, 213, 282, 294, 295, 782 
Chy Lung v. Freeman, 92 U. S. 275, 20 
Cincinnati, etc., R. Co. v. Butler, 103 

Ind. 31, 268 

Cincinnati, etc., R. Co. v. Citv of An- 
derson, 139 Ind. 490, " 224, 225 
Cincinnati, etc., R. Co. v. Claire, 6 

App. 390, ' 151, 152, 165, 266, 267, 830 
Cincinnati, etc., R. Co. v. Duncan, 143 

Ind. 524, 269, 831 

Cincinnati, etc., R. Co. v. Eaton, 94 

Ind. 474, 228 

Cincinnati, etc., R. Co, v. Gaines, 104 

Ind. 526, 268 

Cincinnati, etc., R. Co, v. Long, 112 

Ind. 166, 270 

Citizens', etc., Assn. v. Topeka, 87 

V. S. (20 Wall.) 665, 196 



[Beferences are to Pages.'] 

Citizens', etc, R, Co, y, Abright, 14 

App. 433, 
Citizens', etc., R, Co. v. Ballard, Ind, 

App. Ct., Jan. 24, 1899, 
Citizens', etc., Co. v. Carev, 66 Ind, 

396, 
Citizens', etc., R. Co, v. City R, Co,, 

64 Fed. Rep. 647, 
Citizens' St. R. Co. v. Citv Co., 56 Fed. 

Rep. 746, " 9, 10, 

Citizens', etc., Co. v. Detroit R., 171 

IT. S. 48, 
Citizens', etc., R. Co. v. Helvie, Ind. 

Sup. Ct., March 9, 1898, 
Citizens', etc., R. Co. v. Lowe, 12 App. 

47, 272, 

Citizens', etc., R. Co. v. Spahr, 7 App. 

23, 270, 

Citizens', etc., R. Co. v. Stoddard, 10 

App. 278, 
Citizens' Street R. Co. v. Sutton, 148 

Ind. 169, 
Citizens', etc., Co. v. Town of Elwood, 

114 Ind. 322, 32, 61, 124, 138, 140, 

737, 740, 753, 762, 

Citizens', etc., R. Co. t\ Twiname, 111 

Ind. 587, 
City of Alexandria v. Young, 20 App. 

672, 238, 

City of Anderson v. Bain, 120 Ind. 254, 

88, 89, 254, 257, 299, 

Citv of Anderson v. East, 117 Ind. 126, 

107, 120, 142, 144, 

Citv of Anderson v. O'Conner, 98 Ind. 

168, 
Citv of Aurora v. Bitner, 100 Ind. 396, 
134, 230, 233, 234, 235. 244, 800, 



230, 
City of Aurora v. Fox. 78 Ind. 1, 

84, 90, 109, 110, 254, 255, 

261, 274, 275, 276, 

Citv of Aurora v. Lamar, 59 Ind. 401, 

114, 200, 209, 

Citv of Aurora v. West, 22 Ind. 88, 

116, 171, 
City of Aurora v. West, 9 Ind. 74, 

28, 31, 48, 171, 197, 200, 206, 
Citv of Bedford v. Willard, 133 Ind. 

562, 
Citv of Bedford v. Woody, Ind. App. 

Ct., May 18, 1899, 
City of Bloomington v. Phelps, 149 
Ind. 596, 709, 

City of Bloomington v. Rodgers, 83 

Ind. 261, 
City of Bloomington v. Rogers, 9 App, 
230, 240, 

Citv of Bloomington v. Rogers, 13 App. 

121, 
Citv of Bloomington v. Smith, 123 Ind, 
41, 171, 198, 777, 

Citv of Bloomington v. Wilson, 14 
App. 476, 



270 

837 
272 
853 

853 

57 
270 

273 

272 

272 

240 

228 
798 

271 

239 

302 

326 

116 

801 

231 

256 
285 

215 

198 

784 

120 

240 

714 

134 

241 

251 

913 

91 



TABLE OF CASES. 



XXIX 



\_Iipfercnces are toFar/es.'} 



City of Brazil v. McBride, 6?) Ind. 244, 

62,95, 96, 113. 114, 277 
City of Blaffton v. McAfee, 12 App. 

490, 251 

Citv of Bluff ton v. McAfee, App. Ct., 

Mav 24, 1899, 232, 243 

Citv of Columbia City v. Langbor, 20 

App. 395, 241 

City of Columbus v. Dahn, 36 Ind. 330, 219 
City of Columbus v. Hydraulic, etc., 

Co., 33 Ind. 435, 89, 90 

Citv of Columbus v. Storev, 33 Ind, 

195, ' 90, 158, 277 
Citv of Columbus v. Strassner, 124 Ind. 

482, 107, 230, 233, 240, 242, 801, 804 

Citv of Connersville r. Connersyille, 

etc., Co., 86 Ind. 235, 85, 696 

Citv of Connersville v. Merrill, 14 App. 

303, 709, 712, 716, 722 

Citv of Crawfordsville r. Bond, 96 Ind. 

236, 153, 154, 156, 254, 257, 258 

Citv of Crawfordsville v. Braden, 130 

Ind. 149, 2, 61, 115, 116, 117, 119, 120 

. 141, 147, 735, 736 
City of Crawfordsville v. Irwin, 46 Ind. 

438, 119 

City of Crawfordsville r. Smith, 79 Ind. 

308, 134, 230, 245 

City of Decatur v. Grand Rapids, etc., 

Co., 146 Ind. 577, 310 

Citv of Decatur v. Stoops, 21 Anp. 397, 

133 237 245 
City of Delphi v. Bowen, 61 Ind. 29, 

210, 254, 256, 786 
Citv of Delphi v. Bowen, etc., 138 Ind. 

235, 215 

City of Delphi v. Evans, 36 Ind. 90, 

30, 84, 91, 253, 254, 256, 257, 259, 275, 277 
City of Delphi v. Lowery, 74 Ind, 520, 

84, 110, 134, 230, 231, 232, 233, 238 
City of Delphi v. Startzman, 104 Ind. 

343, 210, 311, 317. 318, 319, 321, 749 

786, 818 
City of Denver v. Sherret, 88 Fed. Rep. 

226, 141, 229, 738 

City of Dunkirk v. Wallace, 19 App. 

298, 256 

Citv of Elkhart v. Calvert. 126 Ind. 6, 

79, 80, 129 
Citv of Elkhart v. Simonton, 69 Ind. 

196, 299, 303 
City of Elkhart v. Simonton, 71 Ind. 7, 

304, 306, 314, 315 
City of Elkhart v. Wickwire, 87 Ind. 77, 

236, 243, 252, 261, 802, 805 
City of Elkhart v. AVickwire, 121 Ind. 
331, 110, 111, 153, 158, 160, 185, 253 

276- 281 
Citv of Elkhart v. Witman, 122 Ind. 

538, 240 

City of Elwood v. Carpenter, 12 App. 

459, 251 

City of Evansville v. Bayard, 39 Ind. 
450, 34, 56, 60, 209 



Citv of Evansville v. Decker, 84 Ind. 
325, 89, 107, 119, 153, 154, 156, 157 

158, 160, 254, 255, 257. 799, 820 
Citv of Evansville v. Dennett, 161 IT. S. 

434, 172 

City of Evansville v. Evans, 37 Ind. 

229, 218 

City of Evansville v. Hall, 14 Ind. 27, 

207, 209, 685 
City of Evansville v. Martin, 41 Ind. 

145, 146 

City of Evansville v. Miller, 146 Ind. 

613, 203, 383, 476 

City of Evansville v. Page, 23 Ind. 525, 

221, 317, 318, 811, 813 
City of Evansville v. Pfisterer, 34 Ind. 

36, 254, 293, 799 

City of Evansville v. Senhenn, 151 Ind. 

42, 233, 234, 235, 237, 238 

City of Evansville v. State, 118 Ind. 426, 

32, 39, 40, 53, 54, 67, 338, 344, 345 
City of Evansville v. Summers, 108 Ind. 

189, 34, 56, 60, 279, 462, 751 

Citv of Evansville v. Thayer, 59 Ind. 

324, 216 

Citv of Evansville v, Wilter, 86 Ind. 414, 

134,231,232,233,234,235 
236, 243, 252, 800 
City of Ft. Wayne v. Bruse, 123 Ind. 

581, 804 

City of Ft. Wayne v. Codv, 43 Ind. 197, 

158, 160, 720 
Ci't3^ of Fort Wayne v. Coombs, 107 

Ind. 75, 152, 154, 155, 156, 157, 158, 160 
161, 234, 238, 258, 800, 824 
City of Ft. Wayne v. De Witt, 47 Ind. 

391, 231, 233, 234, 235, 242 

Citv of Ft. Wayne v. Durnell, 13 App. 

669, 251 

City of Ft.Wayne v. Duryee, 9 App. 620, 234 
Citv of Ft. Wayne v. Ft. Wayne, etc., 

R. Co., 149 Ind. 25, 303 

City of Ft. Wayne v. Hamilton, 132 

Ind. 487, 298 

City of Ft. Wayne v. Lake Shore, etc.. 
R. Co., 132 Ind. 558, 119, 147, 164, 167 

224, 225, 810 
Citv of Ft. Wayne v. Lehr, 88 Ind. 62, 

68, 100 
City of Ft. Wayne v. Patterson, 3 App. 

34, 134, 155, 230, 233, 234, 235, 800, 801 
Citv of Ft. Wayne'v. Rosenthal, 75 Ind. 

156, 108, 113, 114, 147, 277 

City of Ft. Wayne v. Shoatf, 106 Ind. 66. 

124, 141, 159, 166, 289 
Citv of Frankfort v. Aughe, 114 Ind. 77, 

26, 79, 80, 129, 709, 780, 866 
City of Frankfort v. Coleman, 19 App. 

368. 221,226,233,237,240 

Citv of Frankfort v. Ross, 128 Ind. 438, 279 
City of Frankfort r. State, 128 Ind. 438! 281 
City of Franklin v. Harter, 127 Iiid. 446, 

231, 234, 236, SOO 
City of Goshen v. Crary, 58 Ind. 268, 81 



XXX 



TABLE OF CASES. 



\_EefercKccs are to Pages."] 

City of Goshen v. Croxton, 34 Ind. 239, 

77, 79, 781 

City of Goshen v. England, 119 Ind. 

368, 27, 230, 238, 253 

City of Goshen v. Kern, 63 Ind. 468, 79, 147 
City of Goshen v. Myers, 119 Ind. 196, 

148, 149, 248 

City of Greencastle v. Allen, 43 Ind. 

346, 278, 284, 288 

City of Greencastle v. Hazelett, 23 Ind. 

186, 126, 703 

City of Greencastle v. Martin, 74 Ind. 

449, 107, 135 

City of Greenfield v. State, 113 Ind. 597, 284 
City of Greensburg v. Corwin, 58 Ind. 

518, 77, 79, 127, 781, 782 

City of Hammond v. New York, etc., 

E. Co., 5 App. 526, 

26, 79, 81, 82, 150, 723, 866 

City of Hammond v. New York, etc., 
R. Co., 126 Ind. 597, 79, 80, 124, 781 

City of Himtingburgh v. First, 15 App. 
5o2, 239, 240, 800, 804 

City of Huntingburg v. First, Ind. 
App. Ct., March 10, 1899, 233, 240 

City of Huntington v. Breen, 77 Ind. 

29, 230, 235, 240, 241, 244, 800, 803 
City of Huntington v. Burke, 12 App. 

133, 233, 237 

City of Huntington v. Burk, 21 App. 

655, 239, 251 

City of Huntington v. Cast, 149 Ind. 

255, 68, 76, 340, 349, 437 

City of Huntington v. Chesbro, 57 Ind. 

74, 3, 79, 136 

City of Huntington v. Day, 55 Ind. 7, 917 
City of Huntington v. Force, Ind. Sup. 

Ct., April 4, 1899, 708, 714 

City of Huntington v. Griffith, 142 Ind. 

280, 88, 89, 257, 800 

City of Huntington v. Kenower, 12 

App. 456, 218, 298 

City of Huntington v. Mahan, 142 Ind. 

695, 3, 137 

City of Huntington v. McClurg, Ind. 

App. Ct., April 26, 1899, 241, 242 

City of Huntington v. Mendenhall, 73 

Ind. 460, 84 

City of Huntington V. Pease, 56 Ind, 305, 79 
City of Huntington v. State, 66 Ind. 600, 62 
City of Indianapolis v. Bieler, 138 Ind. 

30, 1, 2, 4, 57, 121, 123, 124, 130, 384, 385 
City of Indianapolis v. Bly, 39 Ind. 

373, ' 68, 85, 118 

City of Indianapolis v. Consumers, 

etc., Co., 140 Ind. 107. 

80, 81, 121, 123, 124, 226, 227, 712, 736, 740 
City of Indianapolis v. Cook, 99 Ind. 10, 

231, 240, 802, 803 
City of Indianapolis v. Doherty, 71 

Ind. 5, 134, 231, 248, 867 

City of Indianapolis v. Emmelman, 

108 Ind. 530, 231, 250 



City of Indianapolis v. Gaston, 58 Ind. 

224, 134, 232, 239, 252 

City of Indianapolis v. Giimore, 30 

Ind. 414, 294 

City of Indianapolis v. Grand Master, 

25 Ind. 518, 47, 207 

City of Indianapolis v. Higgins, 141 

Ind. 1, 43, 61, 82, 111, 133, 205, 226, 227 
751, 866, 867, 868, 869, 879, 880, 897 
City of Indianapolis y. Huffer. 30 Ind. 

235, 154, 'l62, 254, 255 

City of Indianapolis v. Huegele, 115 

Ind. 581, 26, 82, 111, 127. 205, 344, 347 

769, 779, 866 
City of Indianapolis v. Imberry, 17 

Ind. 175, 275, 277, 285, 293, 294 

City of Indianaoolis v. Indianapolis 

Home, etc., 50 Ind. 215, 33, 60, 887 

City of Indianapolis v. Indianapolis 

etc., Co., 66 Ind. 405, 115, 117, 140, 735 
City of Indianapolis v. Kingsbury, 101 

Ind. 200, 30, 217, 218, 219, 220, 222, 223 
224, 259, 798, 811, 813 
City of Indianapolis v. Langsdale, 29 

Ind. 486, 212 

City of Indiatiapolis v. Lawyer, 38 Ind. 

348, 153, 156, 157, 244, 245, 258 

City of Indianapolis r. Manser, 15 Ind. 

112, 285 

City of Indianapolis v. McAyoy, 86 

Ind. 587, 62, 69, 212, 318, 751 

City of Indianapolis v. Miller, 27 Ind. 

394, 134, 143, 248 

City of Indianapolis v. Murphy, 91 

Ind. 382, ' 233, 235 

City of Indianapolis v. Navin, 151 Ind. 

139, 40, 41, 42, 48, 49, 370, 843, 853 

City of Indianapolis v. Parker, 31 Ind. 

230, 83 

City of Indianapolis v. Patterson, 33 

Ind. 157, 208, 212, 214, 288 

317, 318, 319 
City of Indianapolis v. Scott, 72 Ind. 

196, 231, 233,' 239, 244, 250 

City of Indianapolis v. Sturdevant, 24 

Ind. 391, 47 

City of Indianapolis v. Sturm, 39 Ind. 

159, 324 

City of Indianapolis v. Tate, 39 Ind. 

282, 156, 157 

City of Indianapolis v. Yajen, 111 Ind. 

240, 212, 684 

City of Indianapolis v. Wann, 144 Ind. 

175, 50, 115, 117, 400 

City of JeffersonvilJe v. Louisyille, 

etc.. Ferry Co., 27 Ind. 100, 145, 146 

City of Jeffersonville V, McHenry, Ind. 

App. Ct., March 7, 1899, 238, 239 

City of Jeffersonviile v. Myers, 2 App. 

532, 88, 89, 90, 254, 257 

City of Jeffersonviile v. Patterson, 32 

Ihd. 140, 289 

City of Jeffersonviile v. Steam Ferry 

Boat, etc., 35 Ind. 19, 145 



TABLE OF CASES. 



XXXI 



[Bcferences are to Fages.'] 



City of Kenosha v. Lamson, 9 Wall. 

477, 10, 115 

Citv of Kokomo v. Mahan, 100 Ind. 
242, 30, 88, 89, 90, 91, 160, 226, 253 

254, 257 
Citv of Kokomo v. Wills, 34 Ind. 48, 80 
City of Lafayette y. Ashbv, 8 App. 214, 

134, 243 
Citv of Lafayette v. Blood, 40 Ind. 62, 

234, 242 
Citv of Lafayette v. Bush, 19 Ind. 326, 

29, 30, 91, 224, 254, 296 
City of Lafayette v. Cox, 5 Ind. 38, 

61, 116, 197, 200 
Citv of Lafayette r. Fowler, 34 Ind. 

140, ^91, 254, 275, 278, 285, 293, 716 

City of Lafayette v. James, 92 Ind 

240, " 139, 696 

Citv of Lafayette v. Jenners, 10 Ind. 
70, 47, 60, 92, 107, 134, 210 

230, 232, 233, 242 
Citv of Lafayette v. Nagle, 113 Ind. 425, 

88, 90, 91, 162, 254, 259, 798 
City of Lafayette v. Kose, 88 Ind. 471, 

120, 246 
Citv of Lafayette v. Shultz, 44 Ind. 97, 

29, 305, 310, 311 
City of Lafayette v. Spencer, 14 Ind. 

399, 30, 254 

City of Lafayette v. State, 69 Ind. 218, 

693, 694, 696 
Citv of Lafayette v. Timberlake, 88 Ind. 

330, 61, 96, 107, 120, 127, 144, 246, 326 
Citv of Lafayette v. Weaver, 92 Ind. 

477, 238, 239, 242 

City of Lafavette v. Wortman, 107 Ind. 

404, " 88, 89, 90, 254, 257 

City of LaPorte v. Gamewell, etc., Co., 

146 Ind. 466, 49, 50, 51, 52, 117, 672, 735 
City of Lawrenceburgh v. Wesler, 10 

App. 153, 218, 219, 260, 298, 812 

City of Lawrenceburg v. Wuest, 16 Ind. 

337, 129 

Citv of Lebanon v. McCoy, 12 App. 500, 

92, 154, 163 

City of Lebanon v. Twiford, 13 App. 

384, 154, 163 

City of Logansport v. Blakemore, 17 

Ind. 318, 277, 291 

City of Logansport v. Carroll, 95 Ind. 

156, 210 

Citv of Logansport v. Case, 124 Ind. 

254, 210, 213 

City of Logansport v. Crockett, 64 Ind. 

319, 68, 84, 96, 97, 109, 112, 114, 759 

City of Logansport v. Dick, 70 Ind. 65, 

62, 139, 230, 231, 235, 237, 697 
City of Logansport v. Dunn, 8 Ind. 378, 

218, 219, 220, 742, 811, 813 
Citv of Logansport v. Dvkeman, 116 

Ind. 15, 51, 52, 84, 97, 109, 117, 118 

119, 164, 672, 763 



Citv of Logansport v. Humphrey, 84 

Ind. 467, 212, 213, 784 

City of Logansport v. Justice, 74 Ind. 

378, 107, 108, 149, 232, 233 

248, 249, 252, 801 
City of Logansport v. La Eose, 99 Ind. 

117, 318, 319, 321, 324, 818, 819 

Citv of Logansport v. Legg, 20 Ind. 

315, 107, 292 

Citv of Logansport v. McConnell, 121 

Ind. 416, 207 

Citv of Logansport v. Pollard, 50 Ind. 

151, 88, 90, 257, 301 

City of Logansport v. Puterbaugh, 46 

Ind. 550, 277 

City of Logansport v. Seybold, 59 Ind. 

225, 28, 206, 207, 208, 319 

City of Logansport v. Shirk, 88 Ind. 

563, 230, 259, 798, 859 

City of Logansport v. Shirk, 129 Ind. 

352, 296, 306, 310, 315 

City of Logansport v. Uhl, 99 Ind. 531, 

139, 254, 277, 721 
City of Logansport v. Wright, 25 Ind. 

512, 62, 107, 119, 153, 254, 255, 752 

Citv of Madison v. Abbott, 118 Ind. 

337, 113 

City of Madison v. Baker, 103 Ind. 41, 

233, 234, 236 
City of Madison v. Kelso, 32 Ind. 79, 

68, 69, 92, 112 
City of Madison v. Korbly, 32 Ind. 74, 

68, 69, 92, 96, 97, 112, 698 
City of Madison v. Ross, 3 Ind. 236, 158 
Citv of Madison v. Smith, 83 Ind. 502, 

107, 113, 114, 118, 171, 197, 198, 199, 200, 201 
Citv of Madison v. Whitney, 21 Ind. 

261, ■ 208, 209, 685 

City of Michigan City v. Ballance, 123 

Ind. 334, 233 

City of Michigan City v. Boeckling, 122 

Ind. 39, 107, 230, 236, 239, 244, 271, 804 
City of Mt. Vernon v. Hohen, Ind. 

App. Ct., April 28, 1899, . 233, 235, 236 
City of Mt. Vernon v. Hovey, 52 Ind. 

563, 31, 171, 197, 198, 199, 777 

City of New Albany v. Armstrong, Ind. 

App. Ct., March'8, 1899, 136, 246 

Citv of New Albany v. Cook, 29 Ind. 

220, 282, 283, 292, 717 

Citv of New Albany v. Conger, 18 App. 

230, 280 

City of New Albany v. Andres, 143 Ind. 

192, 84, 109, 224, 296, 297, 300, 311, 312 
City of New Albany v. Iron, etc., Co., 

141 Ind. 500, 148, 248, 249, 806 

Citv of New Albany??. Lines. 21 App. 

380, 153, 156; 163, 254, 255 

Citv of New Albany v. McCulloch, 127 

Ind. 500, 

50, 63, 138, 153, 242, 243, 720, 725 
City of New Albany v. Meekin, 3 Ind. 

481, 207, 208 



xxxn 



TABLE OF CASES. 



IBeferences are to Pages.'] 



City of New Albany v. Eay, 3 App. 321, 

154, 155, 156, 161, 255, 258, 820 
City of New Albany v. Slider, 21 App. 

392, 134, 136, 227, 246 

Citv of New Albany v. Sweeney, 13 

Ind. 245, ' 294 

City of New Albany v. White, 100 Ind. 

206, 224, 296, 303, 311, 808 

City of New Albany v. Williams, 126 

Ind. 1, 218 

City of New Orleans v. N. O. Water- 
Works Co., 142 U. S. 79, 10 
City of Newton v. Belger, 143 Mass. 

598, 32, 123 

City of Noblesville v. Lake Erie, etc., 

E. Co., 130 Ind. 1, 

221, 222, 264, 810, 811, 812 
Citv of North Vernon v. Voegler, 89 

Ind. 77, 156, 257, 258 

City of North Vernon v. Voegler, 103 

Ind. 314, 89, 90, 119, 153, 154, 162, 246, 254 

255, 298, 820 
City of Pera v. Bearss, 55 Ind. 576, 

208, 210, 212, 319, 321, 324, 7b6 
City of Peru v. Brown, 10 App. 597, 

154, 157, 255, 820 

City of Peru v. Gleason, 91 Ind. 566, 

118, 125, 161 
Citv of Philadelphia V. Western U. Tel. 

Co., 40 Fed. Rep. 615, 5 

City of Philadelphia r. Western U. Tel. 

Co., 81 Fed. Rep. 948, 4 

Citv of Philadelphia v. Western U. Tel. 

Co., 82 Fed. Rep. 797, 5 

City of Philadelphia r. Western U. Tel. 

Co., 89 Fed. Rep. 454, 5 

City of Plymouth v. Milner, 117 Ind. 

324, 243 

City of Plymouth v. Schultheis, 135 

Ind. 339, 32, 123, 126, 326 

City of Portland v. Taylor, 125 Ind. 522, 244 
City R. Co. V. Citizens' R. Co., 166 U. 

S. 557, 9, 11, 408, 853 

City of Richmond v. Davis, 103 Ind. 

449, 118 

City of Richmond v. Dudley, 129 Ind. 

112, 32, 123, 126, 133, 205, 326 

City of Richmond v. McGirr, 78 Ind. 

197, 116, 163, 164, 215 

Citv of Richmond v. Mulholland, 116 

Ind. 173, 231, 240, 800, 803 

City of Richmond v. Scott, 48 Ind. 568, 

45, 206, 209, 685 
City of Richmond v. Smith, 148 Ind. 

294, 128, 141, 144, 166, 259, 260 

City of Richmond v. Test, 18 App. 482, 

153, 156, 157, 254 
City of Rushville v. Rushville, etc., Co., 

132 Ind. 575, 32, 80, 121, 125, 140, 142 

227, 228, 737, 739, 740, 798, 864 
City of Seymour v. Cummins, 119 Ind. 

148, 89, 154, 155, 156, 162, 255, 257 

City of Seymour v. Jeffersonville, etc., 

R. Co., 126 Ind. 466, 224, 225 



City of Shelbyville v. Cleveland, etc., 

R. Co., 146 Ind. 66, 115, 116, 122, 123 

152, 769, 835 
Citv of South Bend v. Cushing, 123 

Ind. 290, 210, 687 

City of South Bend v. Hardv, 98 Ind. 

577, 240 

City of South Bend v. Lewis, 138 Ind. 

512, 676 

City of South Bend v. Martin, 142 Ind. 

31, 3, 136, 137 

City of South Bend v. Paxton, 67 Ind, 

228, 62, 113, 157, 182 

City of South Bend v. University, etc., 

69 Ind. 344, 47, 207, 210, 687 

Citv of Superior v. Norton, 63 Fed. 

Rep. 357, 400 

City of Tell City v. Bielefield, 20 App. 

1, 142, 230, 867 

City of Terre Haute v. Beach, 96 Ind. 

143, 322, 749, 818 

City of Terre Haute v. Blake, 9 Apo. 

403, 224, 297, 303, 304, 305. 306, 311, 314 
City of Terre Haute v. Blake, 136 Ind. 

636, 297, 305, 306, 310 

City of Terre Haute v. Evansville, etc., 

R. Co., 149 Ind. 174, 13, 39, 174, 217 

224, 225, 226, 296, 302, 304, 810 
Citv of Terre Haute v. Hudnut, 112 

Ind. 542. 

107, 153, 154, 155, 162, 252, 255, 820 
Citv of Terre Haute v. Lake, 43 Ind. 

480, 117, 118, 119 

City of Terre Haute v. Mack, 139 Ind. 

96, 159, 280, 293, 714 

City of Terre Haute i\ Terre Haute, 

etc., Co., 94 Ind. 305, 

116, 119, 138, 164, 167 
City of Terre Haute v. Turner, 36 Ind, 

522, 230, 257, 275 

City of Valparaiso v. Adams, 123 Ind. 

250, 88, 89, 90, 255, 257, 820 

City of Valparaiso v. Cartwright, 8 

App. 429, ^ 157, 256 

Citv of Valparaiso v. Chicago, etc., R. 

Co., 123 Ind. 467, 225 

City of Valoaraisov. Gardner, 97 Ind. 1, 
49, 50, 51, 61, 115, 117, 118, 138, 140, 162 
735, 753, 762, 777 
City of Valparaiso v. Parker, 148 Ind. 

379, 187, 188 

City of Valparaiso v. Ramsey, 11 App. 

215, 154, 157, 820, 821 

City of Vincennes v. Callender, 86 Ind. 

484, 138, 691 

City of Vincennes v. Citizens', etc., 

Co., 132 Ind. 114, 

32, 117, 122, 140, 228, 735, 736, 737 
Citv of Vincennes v. Richards, 23 Ind. 

381, 154, 254 

City of Vincennes v. Windman, 72 Ind. 

218, 322 

I City of Wabash v. Aiber, 88 Ind. 428, 
I 89, 90, 257, 767, 800 



TABLE OF CASES. 



XXXI il 



[Iceferences are to Pages.^ 



City of Wabash r. Carver, 129 Ind. 552, 

148, 149, 226, 248, 249, 

Citv of Warsaw v. Dunlap, 112 Ind. 576, 

107. 134, 143, 233, 234, 235, 236, 800, 

Citv of Washington v. Small, 86 Ind. 

463, 230, 232, 233, 

Claiborne County v. Brooks, 111 U. S. 

400, ' 115. 

Clark r. Citv of South Bend, 85 Ind. 

276, . ' 115, 116, 117, 142, 205, 

Clark v. Town of Noblesville, 44 Ind. 83, 

776, 777, 783, 

Clawson, etc., v. Chicago, etc., R. Co., 

95 Ind. 152, 267, 

Clem V. State, 33 Ind. 418, 41, 54, 



Clements v. Lee, 114 Ind. 397, 

276, 278, 289, 291, 292, 293, 
Cleveland v. King, 132 U. S. 295, 143, 
Cleveland, etc., R. Co. v. Backus, 133 

Ind. 513, 6, 18, 25, 44, 46, 

Cleveland, etc., R. Co. i\ Backus. 154 

U. S. 439, 6, 18, 25, 44, 46, 

Cleveland, etc., R. Co. r. City of Con- 

nersville, 147 Ind. 277, 
Cleveland, etc., R. Co. v. Edward C. 

Jones Co., 20 App. 87, 714, 

Cleveland, etc., R. Co. v. Harrington, 

131 Ind. 426, 122, 

Cleveland, etc., R. Co. v. Keely, 138 

Ind 600, 
Cleveland, etc., R. Co. v. Wynant, 119 

Ind. 539, 
Cleveland, etc., R. Co. v. Wynant, 114 

Ind. 525, 238, 245, 

Clevenger v. Town of Rushville, 90 Ind. 

258, 

26, 79, 129, 205, 762, 766, 780, 781, 782, 
Clow r. Brown, 134 Ind. 287, 
Cluggish V. Koons, 15 App. 599, 

708, 791, 
Cluggish V. Rodgers, 13 Ind. 538, 
Coal Floats. City of Jeffersonville, 112 

Ind. 15, 122, 

Coburn y. Bossert, 13 App. 359, 

152, 430, 700, 
Coffin V. Board, etc., 57 Fed. Rep. 137, 
Coffin V. City of Indianapolis, 59 Fed. 

Rep. 221, 52, 172, 387, 388, 

Coffin V. Citv of Portland, 43 Fed. Rep. 

411, 
Coffin V. State, 7 Ind. 157, 34, 

Cole V. LaGrange, 113 U. S. 1, 
Colev. State, 131 Ind. 591, 
Coler V. Cleburne, 131 U. S. 162, 
Colglazier v. Town of Salem, 61 Ind. 

445, 131, 

Collier v. Waugh, 64 Ind. 456, 
Collins V. City of New Albany, 59 Ind. 

396, 317, 

Commissioners v. Beal, 113 IT. S. 227, 
Commissioners v. Bolles, 94 U. S. 104, 
Common Council v. Croas, 7 Ind. 9, 
■ 30, 218, 221, 226, 259, 

CiT. AND To. — iii 



806 

867 

242 

172 

326 

913 

831 
457 

721 
248 

211 

211 

835 

715 

150 

270 

868 

802 

866 

882 

792 
76 

145 

722 
173 

672 

109 
, 67 
196 

158 

172 

767 

877 

318 
172 
172 

811 



Common Council v. Fairchild, 1 Ind. 

315, 79 

Common Council, etc., v. McLain, 8 

Ind. 328, 47, 207 

Commonwealth v. Calhane, 154 Mass. 

115, 2 

Concord v. Robinson, 121 U. S. 165, 172 
Conduitt V. Ross, 102 Ind. 166, 149 

Conklin v. Town of Cambridge Citv, 

58 Ind. 130, 207, 210, 687 

Conner v. New Albany, 1 Blackf. 43, 

218, 226, 798, 811 
Connor v. Citizens', etc., R. Co., 105 

Ind. 62, 270 

Consumers' Co. v. Harless, 131 Ind. 

446, 28, 30, 40, 42 

Consumers', etc., Co.-y. Huntsinger, 14 

App. 156, 862 

Consumers', etc., Co. v. Perrego, 144 

Ind. 350, 229 

Converse, In re, 137 U. S. 624, 20 

Conway v. Taylor's Ex'rs, 1 Blackf. 

603, 8 

Conwell V. Emrie, 2 Ind. 35, 328 

Conwell, etc., v. Town of Connersville, 

15 Ind. 150, 209, 685 

Cook V. Town of Port Fulton, 106 Ind. 

170, 208, 783, 784 

Cooper V. State, 47 Ind. 61, 95 

Cooper V. Adams, 2 Blackf. 294, 95 

Copeland v. State, 126 Ind. 51, 45 

Copeland v. Town of Sheridan, Ind. 

Sup. Ct., Oct. 25, 1898, 766, 770 

Copenhaver, In re, 54 Fed. Rep. 660, 9 
Cordell v. State, 22 Ind. 1, 782 

Corporation of Bluffton v. Mathews, 92 

Ind. 213, 234, 236 

Corporation of Bluffton v. Silver, 63 

Ind. 262, 789 

Corporation of Bluffton v. Studabaker, 

106 Ind. 129, 

34, 56, 60, 117, 142, 326, 751, 763, 764 
Corson v. Maryland, 120 U. S. 502, 2 

Cory V. Carter, 48 Ind. 327, 14, 32 

Council V. City of Peru, 29 Ind. 305, 197 
County Board, etc., v. State, 148 Ind. 

675, 57 

County of Moultrie v. Rockingham, 

etc.. Bank, 92 U. S. 631, 10 

Covington, etc., Bridge Co. v. Ken- 
tucky, 154 U. S. 204, 6, 7, 8 
Covington, etc., Co. v. Sandford, 164 

U. S. 578, 22 

Cowley V. Town of Rushville, 60 Ind. 

327,* 129,752,766 

Cox V. Louisville, etc., R. Co., 48 Ind. 178, 

218, 223, 224, 259, 260, 262, 264, 266, 811 
Cov V. Indianapolis, etc., Co., 146 Ind. 

655, 227, 228 

Craft, etc., v. Tuttle, 27 Ind. 332, 209, 685 
Craighill v. Lambert, 168 U. S. 611, 58 



xxxiv 



TABLE OF CASES. 



[Beferences are to Pages.'] 



Crawford v. Hedrick, 9 App. 356, 33 

Crawfordsville, etc., Assn. v. Clements, 

12 App. 464, 158, 159, 160, 290, 293 

700, 713, 714, 718, 720, 729 
Creighton v. Piper, 14 Ind. 182, 37 

Crocker v. Duncan, 6 Blackf. 278, 38 

Cromie v. Board, etc., 71 Ind. 208, 859 

Cromer v. State, 21 App. 502, 218 

Cromwell v. Countv of Sac, 96 U. S. 51, 172 
Cross V. Morristown, 18 N. J. Eq. 305, 116 
Crowder v. Town of Sullivan, 128 Ind. 

486, 32, 49, 124, 138, 140, 228, 735 

736, 737, 777, 798 
Crowell V. Jacqua, 114 Ind. 246, 

279, 281, 283, 288 
Crowlev V. Christensen, 137 U. S. 86, 22 
Crutcher v. Kentucky, 141 U. S. 47, 1, 4 
Culbertson v. Board, etc., 52 Ind. 361, 35 
Cullen V. Town of Carthage, 103 Ind. 

196, 97, 760, 763 

Cummins v. City of Seymour, 79 Ind. 

491, 69, 119, 125, 153, 154, 157, 158, 226 
254, 255, 259, 260, 274, 275, 285, 740, 798 
Cummins, etc., v. Evansville, etc., E.. 

Co., 115 Ind. 417, 165, 267, 831 

Currier v. Elliott, 141 Ind. 394, 33 



D 



Daggy V. Ball, 7 App. 64, 708 

Dailey v. City of Indianapolis, 53 Ind. 

483, 80 

Dailey v. State, 8 Blackf. 329, 37 

Daily v. City of Columbus, 49 Ind. 169, 

139, 169, 691 
Dantzer v. Indianapolis, etc., Co., 141 

Ind. 604, 

25, 224, 260, 265, 296, 297, 798, 834 
Darnell v. Keller, 18 App. 103, 

285, 419, 420, 427, 721, 722, 729 
Dartmouth College Case, 4 Wheat. 518, 9 
Davidson v. Koehler, 76 Ind. 398, 40 

Davidson v. New Orleans, 96 U. S. 97, 19, 28 
Davis V. City of Crawfordsville, 119 

Ind. 1, 90, 254, 257, 258 

Davis V. Fasig, 128 Ind. 271, 31, 80, 125, 132 
Davis V. Fogg, 78 Ind. 301, 57 

Davis V. Massachusetts, 167 U. S. 43, 16, 22 
Davis V. Rupe, 114 Ind. 588, 33 

Davis V. State, 44 Ind. 38, 104 

Debolt V. Carter, 31 Ind. 355, 767, 798 

Decker v. Evansville, etc., R. Co., 133 

Ind. 493, 26, 259, 265, 297 

Decker v. Sergeant, 125 Ind. 404, 

31 129 132 
Deffenbaugh v. Foster, 40 Ind. 382, ' 278 
De Haven v. State, 2 App. 376, 26 

Delzell V. Indianapolis, etc., R. Co., 

32 Ind. 45, 267, 830 

Demaree v. Johnson, 150 Ind. 419, 197 

Denny v. State, 144 Ind. 503, 349, 778 

DePauw, etc., Co. v. Alexandria, Ind. 

Sup. Ct, Jan. 11, 1899, 212 



De Pauw v. City of New Albany, 22 Ind. 

204, 209, 685 

DePuv V. City of Wabash, 133 Ind. 

336, 124, 275, 277, 294, 709, 716, 721, 730 
Detroit v. Osborne, 135 U. S. 492, 115 

Deutschman v. Town of Charlestown, 

40 Ind. 449, 129, 766 

Dickerson v. Franklin, 112 Ind. 178, 

210. 687 
Dills V. State, 59 Ind. 15, 28 

Dinckerlocker v. Marsh, 75 Ind. 548, 33 
Dinwiddle v. President, etc., 37 Ind. 

QQ, 754, 768 

Dixon County y. Field, 111 U. S. 83, 

52, 173 
Doe V. President, etc., 7 Ind. 641, 356, 742 
Doe V. Town of Attica, 7 Ind. 641, 811, 813 
Doering v. State, 49 Ind. 56, 94, 127, 760 
Donch V. Board, etc., 4 App. 374, 212 

Donnell v. State, 2 Ind. 658, 81 

Donovan v. Town of Huntington, 24 

Ind. 321, 80 

Dooley v. Town of Sullivan, 112 Ind. 

451, 89, 107, 119, 153, 226, 231, 233 

236, 788, 797, 802 
Doon Tp. V. Cummins, 142 U. S. 366, 50 
Dorsett y. City of Greencastle, 141 Ind. 

38 232 

Dotson V. Bailey, 76 Ind. 434, 329, 331 

Douglass County v. Pike. 101 D. S. 677, 10 
Dowell V. Talbott Paving Co., 138 Ind. 

675 723 729 

Dowsu. Chicago, 11 Wall. 108, ' 58 

Drake v. Grout, 21 App. 534, 415, 417 

Drew V. Town of Geneva, 150 Ind. 662, 

761, 797 
Dronberger v. Reed, 11 Ind. 420, 27, 29 
Duckwall V. City of New Albany, 25 

Ind. 283, 31, 113, 129, 146 

Dugger V. Hicks, 11 App. 375, 

124, 711, 712, 720, 721, 722, 723, 724 
Duncan v. Citv of Terre Haute, 85 Ind. 

104, - 223, 813 

Duncan v. Missouri, 152 U. S. 377, 15 

Duncan v. Shenk, 109 Ind. 26, 666 

Durham v. Board, etc., 95 Ind. 182, 212 
Dwenger v. Chicago, etc., R. Co., 98 

Ind. 153, 26, 260, 265 

Dwenger v. Geary, 113 Ind. 106, 703 



E 



Eastman v. State, 109 Ind. 278, 864 

Edmunds, etc., v. Gookins, 24 Ind. 

169, 320 

Edmunds, etc., v. Gookins, 20 Ind. 

447, 320 

Edwards v. Johnson, 105 Ind. 594, 33 

Egbert v. Lake Shore, etc., R. Co., 6 

App. 350, 259, 264, 266, 798 

Eichel V. Senhenn, 2 App. 208, 245 

Eichels v. Evansville, etc., Co., 78 Ind. 

261, 34, 56, 60, 61, 116, 263, 271, 839 



TABLE OF CASES. 



XXXV 



lEeferences are to Pages.'] 



Elam V. State, 75 Ind. 618, 
Elder v. State, 96 Ind. 162, 
Elston v. Board, etc., 20 Ind. 272, 

322, 818, 
Emerich v. City of Indianapolis, 118 
Ind. 279, 129, 131, 132, 

Emert v. Missouri, 156 U. S. 296, 
Enochs V. Pittsburg R. Co., 145 Ind. 

635, 
Enos V. State, 131 Ind. 560, 

63, 69, 70, 71, 
Erwin v. Central Co., 148 Ind. 365, 
Escanaba Co. v. Chicago, 107 U. S. 678, 

6, 
Eskleman v. Miller, 57 Ind. 88, 
Evans v. Adams Ex. Co., 122 Ind. 362, 
Evansville, etc., R. Co. v. Carvener, 

113 Ind. 51, 267, 803, 

Evansville, etc., R. Co. v. City of Evans- 
ville, 15 Ind. 395, 124, 198, 199, 
Evansville, etc., R. Co. v. Charlton, 6 
App. 56, 

R. Co. V. Crist, 116 

165, 267, 803, 
R. Co. v. Gentry, 147 



R. Co. V. Griffin, 100 
R. Co. V. Miller, 30 



Evansville, etc. 

Ind. 446, 
Evansville, etc. 

Ind. 408, 
Evansville, etc. 

Ind. 221, 
Evansville, etc, 

Ind. 209, 
Evansville, etc., R. Co. y. State, 149 

Ind. 276, 264, 267, 830, 

Evansville, etc., R. Co. v. West, 139 

Ind. 254, 6, 18, 25, 27, 44, 46, 211, 
Everett v. Deal, 148 Ind. 90, 

109, 729, 730, 
Eversole v. Chase, 127 Ind. 297, 57, 
Eversole v. Cook, 92 Ind. 222, 207, 208, 
Ewing V. Robeson, 15 Ind. 26, 
Ewing V. Trustees, etc., 61 Ind. 129, 



55 
42 

819 

203 
3 

270 

755 
260 



149 
245 

830 

200 

265 

830 

270 

803 

27 

831 

216 

759 

861 

783 

86 

57 



Falkenburgh v. Jones, 5 Ind. 296, 28 

Falkner v. City of Aurora, 85 Ind. 131, 

61, 96, 127, 144, 246, 326 
Fall Brook District v. Bradley, 164 

U. S. 112, 19, 29 

Fanning v. Gregoire, 16 How. 524, 8 

Farmers' and Mechanics' Ins. Co. v. 

Harrah, 47 Ind. 236, 14 

Farneman v. Mount Pleasant Ceme- 
tery Ass'n, 135 Ind. 344, 705 
Fatout V. Board, etc., 102 Ind. 223, 119 
Faust V. City of Huntington, 91 Ind. 

493, 217, 218, 219, 221, 224, 297, 312, 811 
Feibleman v. State, 98 Ind. 516, 57, 861 
Fellows V. Walker, 39 Fed. Rep. 651, 42 
Fertilizing Co. v. Hyde Park, 97 U. S. 

659, 12 

First Nat. Bank v. Sarlls, 129 Ind. 201, 

116, 142, 143, 144, 326 
First Presbyterian Church, etc., v. City 
of Ft. Wayne, 36 Ind. 338, 158 



First Presbvterian Church v. City of 

Lafavette; 42 Ind. 115, 290 

Fisher"'t;. Hobbs, 42 Ind. 276, 221 

Fisk y. Jefferson Police Jury, 116 U. S. 

131, 10 

Fitch V. Seymour Water Co., 139 Ind. 

214, 139 

Fleming v. City of Indianapolis, 6 App. 

80 210, 687 

Flinn v. State, 24 Ind. 286, 43, 61, 752, 880 
Flora V. Sachs, 64 Ind. 155, 83 

Florer v. McAffee, 135 Ind. 540, 210, 786 
Florer v. Sheridan, 137 Ind. 28, 46 

Flournoy v. City of Jeffersonville, 17 

Ind. 169, 291 

Foland v. Town of Frankton, 142 Ind. 

546, 49, 50, 735, 777, 778 

Foltz V. Kerlin, 105 Ind. 221, 37 

Forsythe v. City of Hammond, 71 Fed. 

Rep. 443, 320 

Forsythe v. City of Hammond, 137 Ind. 

426, 324 

Forsythe v. Hammond, 164 U. S. 706, 749 
Forsythe v. City of Hammond, 68 Fed. 

Rep. 774, 323, 679 

Forsythe v. City of Hammond, 142 Ind. 

505, 317, 318, 321, 323, 324, 679, 749 

810, 815, 819 
Forsyth v. Hammond, 166 IT. S. 506, 

16, 18, 320, 323, 679, 819 
Forsvth V. Wilcox, 143 Ind. 144, 29 

Fossion V. Landry, 123 Ind. 136, 

218,219, 260,811 
Foster v. City of Huntington, App. Ct. 

June 7, 1899, 99 

Foster v. Kansas, 112 U. S. 201, 22 

Frank v. Evansville, etc., R, Co., Ill 

Ind. 132, 859 

Frankfort v. Aughe, 114 Ind. 77, 205 

Freeman v. Smith, 7 Ind 582, 95 

French v. Harley, 141 Ind. 618, 53 

Frisbie v. Trustees, etc., 78 Ind. 269, 

67, 769 
Fuller V. Cox, 135 Ind. 46, 67, 721 



G 



Galbreath v. Trump, 83 Ind. 381, 80 

Gardner v. Haney, 86 Ind. 17, 

171, 198, 755, 777, 778, 908, 913, 914 

Garrison v. New York, 21 Wall. 196, 28 

Garvin v. Daussman, 114 Ind. 429, 

19, 20, 24, 29, 159, 276, 420, 711, 720, 823 

Gaslight, etc., Co. v. City of New Al- 
bany, 139 Ind. 660, 736, 738 

Gass V. State, 34 Ind. 425, 68, 70 

Gaston v. Bailey, 14 App. 581, 

230, 231, 384, 802 

Gaston v. Bailev, App. Ct. May 24, 
1899, " 232, 259, 261 

Gavin v. Board, etc., 104 Ind. 201, 253 

Georgia Packing Co. y. Mavor, etc., 60 
Fed. Rep. 774, ' 3 

Gentile y. State, 29 Ind. 409, 40, 41 



XXXVl 



TABLE OF CASES. 



[Befcrences a 

Gibbons v. Ogden, 9 Wheat. 1, 3 

Gilbert v. Board, etc., 8 Blackf. 81, 34, 67 
Gilman v. Philadelphia, 3 Wall. 713, 6 

Gilson V. Board, 128 Ind. 65, 41, 42, 46 

Gimble v. Stolte, 59 Ind. 446, 299 

Giozza V. Tiernan, 148 U. S. 657, 16 

Gladson v. Minnesota, 166 U. S. 427, 5 

Glantz V. City of South Bend, 106 Ind, 

305, 134, 230, 244 

Glascock V. Lyons, 20 Ind. 1, 68 

Glover v. City of Terre Haute, 129 Ind. ' 

593, ' 317, 319 

Glover v. State, 109 Ind. 391, 877 

Goddard v. Stockman, 74 Ind. 405, 198, 199 
Gold, Trustee, v. Pittsburg, etc., R. Co., 

Ind. Sup. Ct., March 28, 1899, 224, 827 
Goodbub V. Hornung, 127 Ind. 181, 33 

Goodin v. City of Des Moines, 55 Iowa 

67, 232 

Goodrich v. Winchester, etc., Co., 26 

Ind. 119, 47 

Goodwin v. State, 142 Ind. 117, 68, 96 

Goodwine v. Stephens, 63 Ind. 112, 95 

Goring v. McTaggan, 92 Ind. 200, ' 

124, 159, 288, 289, 717 
Gosman v. State, 106 Ind. 203, 

37, 43, 45, 55 
Gougar v. Timberlake, 148 Ind. 38, 36 

Gafferty v. City of Rushville, 107 Ind. 

592. 3, 32, 123, 124, 136, 137, 765 

Graves v. Thomas, 95 Ind. 361, 261 

Graves v. Town of Middletown, 137 

Ind. 400, 296, 807 

Gray v. Connecticut, 159 U. S. 74, 22 

Green v. City of Indianapolis, 25 Ind. 

490, 78, 79, 110, 111, 120, 762, 781 

Green v. Cheek, 5 Ind. 105, 321 

Green v. Simon, 17 A pp. 360, 35 

Greencastle, etc., v. Black, 5 Ind. 557, 210 
Greensboro Tp. v. Cooke, 58 Ind. 139, 917 
Greenwood v. Kappes, 31 Ind. 216, 149 
Gregory v. State, 94 Ind. 384, 44 

Griebel v. State, 111 Ind. 369, 68 

Grifiee v. Town of Summitville, 10 App. 

332, 80, 111, 124, 205, 780, 782 

Grimes v. Coe, 102 Ind. 406, 807 

Grimes v. Louisville, etc., R. Co., 3 

App. 573, 869 

Groesch v. State, 42 Ind. 547, 42 

Grove v. City of Ft. Wayne, 45 Ind. 

429, 1.34, 226, 235, 241, 246 

Grusenmeyer v. City of Logansport, 76 

Ind. 549, 62, 324, 749, 750, 751, 818, 819 
Guckien v. Rothrock, 137 Ind. 355, 39 

Gulick V. New, 14 Ind. 93, 

37, 44, 45, 67, 76, 77 
Gulick V. Connely, 42 Ind. 134, 

278, 285, 292, 420 
Gurley, etc., v. Butler, 83 Ind. 501, 43 ! 

Guy V. Baltimore, 100 U. S. 434, 3, 8 I 

Gwynn v. Homan, 15 Ind. 201, 217, 218, 219 ! 



re to Fages.j 



Haag V. Board, etc., 60 Ind. 511, 

134, 163, 246 
Haas V. City of Evansville, 20 App. 

482, " 279 

Haase v. State, 8 App, 488, 26 

Hadley v. Lake Erie, etc., R. Co., 21 

App. 675, 268, 869, 870 

Hadley v. State, 66 Ind. 271, 917 

Hagaman v. Moore, 84 Ind. 496, 29 

Haggart v. Stehlin, 137 Ind. 43, 31, 35, 130 
Hagor V. Reclamation District, 111 

U. S. 701, 19 

Haines v. Thomas, 7 Ind. 38, 25 

Halbert r. State, 22 Ind. 125, 104 

Hall r. Craig. 125 Ind. 523, 57, 861 

Haller v. Sheridan, 27 Ind. 494, 765 

Halloran v. State, 80 Ind. 586, 26 

Halstead r. City of Attica, 28 Ind. 378, 290 
Hamilton v. City of Ft. Wayne, 73 

Ind. 1, 309,310 

Hamilton v. City of Ft. Wayne, 40 

Ind. 491, 45, 47, 206, 210, 687 

Hamilton v. City of New Albany, 30 

Ind. 482, 703 

Hamilton v. City of Shelbvville, 6 App. 

538, 69, 117,'l25, 126, 139, 161 

Hamilton, etc., Co. v. Hamilton Citv, 

146 U. S. 258, ' 9, 11 

Hammond, etc., R. Co. v. Spyzehalski, 

17 App. 7, 854 

Hancock i\ Lake Erie, etc., R. Co., 

21 App. 10, 269, 831 

Hankey v. Downey, 116 Ind. 118, 865 

Hankins v. Lawrence, 8 Blackf. 266, 297 
Hanlon v. Board, etc., 53 Ind. 123, 42 

Hardenbrook v. Town of Ligonier, 95 

Ind. 70, 31, 83, 762, 781, 782 

Hardinsburg v. Cravens, 148 Ind. 1, 808 
Harmon v. Board, etc., Madison 

County, Ind. Sup. Ct., June 16, 1899, 

41, 57 
Harmon v. Chicago, 147 V. S. 396, 6, 7 
Harris v. Millege, 151 Ind. 70, 750, 751 

Harrison, Ex parte, 112 Ind. 329, 28 

Harrison S. Td. v. McGregor, 96 Ind. 

185, ' 908, 909 

Hart V. Parker, 148 Ind. 706, 711 

Harvey v. Osborn, 55 Ind. 535, 43, 61, 752 
Harvev v. State, 5 App. 422, 868 

Harvey v. State, 94 Ind. 159, 104, 759 

Haslett V. New Albany, 7 App. 603, 

223, 259, 262, 264, 798 
Hasty V. City of Huntington, 105 Ind. 

541, ' 77, 142, 143, 326 

Hayden v. Songer, 56 Ind. 42, 95 

Hayes v. Holly Springs, 114 IT. S. 120, 173 
Haves v. Michigan Central S. Co., Ill 

IT. S. 228, 152 

Haynes v. Thomas, 7 Ind. 38, 

30, 221, 259, 260, 811 



TABLE OF CASES. 



XXXVll 



Havs V. City of Vincennes. 82 Ind. 178, 
296, 299, SOi, 309, 310, 
Havs V. Pacific, etc., Co., 17 How. 596, 
Kays V. Tippy, 91 Ind. 102, 
Hazelett v. Batler University, $4 Ind. 

230, 40, 

Hazzard v. Heacock, 39 Ind. 172, 
Heagy v. State, 85 Ind. 260, 98, ^ 

Heanley v. State, 74 Ind. 99, 
Hearn v. City of Greensburg, 51 Ind. 

119 ' 27 

Pleath r. State, 105 Ind. 342, 
Hebron, etc., Co. v. Harvev, 90 Ind. 

192, 113, 



lEcfcrcnccs arc toFagcs.'] 
Howard v 



314 

7 

57 



42 

86 

887 

42 

253 

131 

258 



Hedderich r. State, 101 Ind. 564, 35, 130 
Hedges v. Dixon Coantv, 150 U. S. 182, 52 
Heick V. Voight, 110 Ind. 279, 282 

Heilman v. Shanklin, 60 Ind. 424, 36 

Heizer v. Yobn, 37 Ind. 415, 916 

Hellenkamp v. Citv of Lafavette, SO 

Ind. 192, ^ 2.11] 291, 292, 294 

Hehn v. First Nat'l Bank, 91 Ind. 44, 27 
Henderson, etc. v. London, etc., Co., 

135 Ind. 23, 46, 206, 327, 894 

Henderson v. Mayor of New York, 92 

U. S. 259, 16, 20 

Henderson, etc., v. State, 137 Ind. 552, 41 
Hentborn v. Doe, 1 Blackf. 157, 57 

Herman v. State, 8 Ind. 545, 31 

Hiatt V. State, 110 Ind. 472, 104 

Hiatt V. Town of Darlington, Ind. Sup. 

Ct., May 19, 1899, 721, 818 

Higert v. Citv of Greencastle, 43 Ind. 
_ 574, " 230, 235, 241, 244, 800 

Hilgenberg v. Wilson, bb Ind. 210, 

62, 207, 209, 752 
Hill V. Hazen, 93 Ind. 109, 331 

Hill V. Mempbis, 134 U. S. 198, 172 

Hill V. Sleeper, 58 Ind. 221, 77 

Hines v Board, etc., 93 Ind. 266, 212 

Hingle v. State, 24 Ind. 28, 39 

Hirth V. Citv of Indianapolis, 18 Apw. 

673, ^ 30, 88, 405, 407, 493, 562, 632 

Ho(\b V. State, 20 App. 64, 868 

Hockett V. State, 105 Ind. 250, 

30, 31, 863, 864, 865 
Holder v. City of Crawfordsville, 143 

Ind. 558, 224, 297, 305, 306, 307, 312, 313 
Holland v. Bartcb, 120 Ind. 46, 244, 867 



289, 



Holland v. Spell, 144 Ind. 561, 
Hollingswortb v. State, 111 Ind 
Hon V. State, 89 Ind. 249, 
Hopewell y. State, App. Ct., Jane 9, 
1899, 62, 96 

Hopkins v. Boj^d, 18 App. 63, 
Hopper V. Covington, 118 U. S. 148, 

172, 777 
Hornby v. State, 69 Ind. 102, 
Horney v. Sloan, 1 Ind. 266, 
House V. City of Greensburg 

Hove'y v. Foster, 118 Ind. 502 
Hovey v. State, 127 Ind. 588, 
Hovey v. State, 119 Ind. 395, 



808 
876 
749 

127 
238 

. 913 
917 
81 
93 Ind. 

62, 298, 313 
40 
38 
53 



Shoemaker, 35 Ind, 111, 

37, 39, 44, 45, 67, 76, 77 
Huff V. City of Lafayette, 108 Ind. 14, 

318, 322, 324 
Hughes V. Parker, 148 Ind. 692, 

53, 57, 711, 721, 729 
Huling V. Kaw Valley R. Co., 130 U. S. 

559, 19, 29 

Humphreys v. Stevens, 49 Ind. 491, 68 

Hunt V. Ambruster, 17 N. J. Eq. 208. 149 
Hunt V. State, 124 Ind. 306, 104, 105 



Hunter v. Eichel, 100 Ind. 463, 
Hyatt V. City of Washington, 20 App. 

148, 
Hvmes v. Aydelott, 26 Ind. 431, 



Indiana Bond Co 

550, 
Indiana, etc., R. Co. v. 

581, 
Indiana, etc., R. Co. v 

Ind. 399, 
Indiana, etc., R, Co. v 



I 

V. Bruce 



13 App. 

421, 425, 
Allen, 113 Ind. 

223, 311, 
Barn hart, 115 

267, 830, 
City of Attica, 



810 

78 

27 



426 
813 
869 
199 



56 Ind. 476, 81, 48, J 71, 197, 198. 

Indiana, etc., R. Co. v. Eberle, 110 Ind. 

542, 259, 260, 265, 298, 798 

Indiana, etc., Co. v. State, 53 Ind. 575, 859 
Indiana, etc., Co. v. Wagner, 138 Ind. 

658, 748, 749, 750 

Indiana, etc., Co. v. Huntsinger, 12 

App. 285, 862 

Indianapolis Brewing Co. v. Claypool, 

149 Ind. 193, 64, 446 

Indianapolis, etc., R. Co. v. Backus, 

133 Ind. 609, 6, 25, 44 

Indianapolis, etc., R. Co. ■y. Boettcher, 

131 Ind. 82, 268 

Indianapolis, etc., R. Co. y. Citizens', 

etc., Co., 127 Ind. 869, 32, 124, 138, 140 
228, 229, 263, 271, 737, 739, 798, 846, 855 
Indianapolis, etc., R. Co. v. City of 

Lawrenceburg, 84 Ind. 804, 166, 268 

Indianapolis, etc., R. Co. v. Dohn, 

Sup. Ct., May 28, 1899, 128, 833 

Indianapolis, etc., R. Co. v. Jewett, 16 

Ind. 273, 110 

Indianapolis, etc., R. Co. v. Lindlev, 

75 Ind. 426, ^ 267 

Indianapolis, etc., R. Co. v. McCaffery, 

72 Ind. 294, 223 

Indianapolis, etc., R. Co. v. Ross, 47 

Ind. 25, 263, 288, 728, 792, 793 

Indianapolis, etc., R. Co. v. Smith, 52 

Ind. 428, 263, 266 

Indianapolis, etc., R. Co. v. State, 87 



Ind. 489, 



165, 226, 229, 267, 831 



Indianapolis, etc., R. Co. v. Stephens, 
28 Ind. 429, 751 

Indianapolis Gas Co. v. City of Indian- 
apolis, 82 Fed. Rep. 245, 21 

Indianapolis Union R. Co. v. Neu- 
backer, 16 App. 21, 269 



xxxyiii 



TABLE OF CASES. 



\_Beferences are to Pages.'] 



Ironwood, etc., Co. v. Ironwood City, 

99 Mich. 456, 694 

Irwin V. Lowe, 89 Ind. 540, 53, 198 

Ivens V. Cincinnati, etc., R. Co., 103 
Ind. 27, 869 



Jackson v. Smith, 120 Ind. 520, 

157, 160, 253, 258 
Jackson Township v. Barnes, 55 Ind. 

137, 917 

Jacobs, etc., Co. v. City of Atlanta, 89 

Fed. Rep. 244, 4, 23 

Jamieson v. The Indiana, etc., Co., 

128 Ind. 555, 2 

Jarvis v. Robertson, 126 Ind. 281, 908, 917 
Jeffersonville, etc., R. Co. v. Dunlap, 

112 Ind. 93, 267 

Jeffries v. McNamara, 49 Ind. 142, 95 

Jenkins v. Newman, 122 Ind. 99, 299 

Jenkins v. Stetler, 118 Ind. 275, 

254, 277, 278, 284, 289, 290, 291, 292, 293 
295, 721, 789, 799 
Jennings v. Fisher, 103 Ind. 112, 755, 769 
Jett V. City of Richmond, 78 Ind. 316, 

111, 205, 779, 866 
Jewell V. Town of Sullivan, 5 App. 188, 

107, 233, 801 
John V. Cincinnati, etc., R. Co., 35 Ind. 

539, 196 

Johns V. State, 130 Ind. 522, 914 

Johnson v. Allen, 62 Ind. 57, 293, 799 

Johnson v. Board, etc., 107 Ind. 15, 

35, 41, 210, 320, 321 
Johnson v. City of Indianapolis, 16 

Ind. 227, 278 

Johnson v. Common Council, etc., 16 

Ind. 227, 62 

Johnson v. Lewis, 115 Ind. 490, 

25, 159, 420, 823 
Johnson v. State, 113 Ind. 143, 864 

Johnston v. State, 128 Ind. 16, 38, 63, 71 
Jones V. City of Columbus, 62 Ind. 421, 

45, 212 
Jones V. Foley, 121 Ind. 180, 207 

Jones V. Schulmeyer, 39 Ind. 119, 280 

Jones V. Summer, 27 Ind. 510, 210, 786 

Julian V. State, 140 Ind. 581, 69 

Justice V. City of Logansport, 6 App. 

135, 97, 207, 213 

K 

Kalbrier v. Leonard, 34 Ind. 497, 

62, 210, 282, 292 
Kane v. City of Indianapolis, 82 Fed. 

Rep. 770, 238 

Katzenberger v. Aberdeen, 121 U. S. 

172, 173 

Kaufman v. Stein, 138 Ind. 49, 

142, 143, 204 
Keehn v. McGillicuddy, 15 App. 580, 

88, 89, 90, 110, 257, 715, 721 



Reiser v. State, 58 Ind. 379, 131 

Keith V. Wilson, 145 Ind. 149, 

708, 716, 761, 767, 789, 790, 791, 792, 797 
Kellev V. State, 92 Ind. 236, 41 

Kellyr. Milan, 127 U. S. 139, 172, 197 

Kellv V. Pittsburg, 104 U. S. 78, 

15, 16, 28, 318 
Kemmler, In re, 136 U. S. 436, 16 

Kent V. Town of Kentland, 62 Ind. 291, 

46, 914, 915 
Kentucky R. Tax Cases, 115 U. S. 321, 

19 29 
Kerlin v. Reynolds, 142 Ind. 460, ' 42 

Kerr v. Jones, 19 Ind. 351, 37 

Kidd r. Pearson, 128 U. S. 1, 22 

Kiefer v. Summers, 137 Ind. 106, 97 

Kilhan v. Andrews, 130 Ind. 579, 25, 159 
Kimberhn v. State, 130 Ind. 120, 53, 55 
Kimerer v. State, 129 Ind. 589, 38 

Kincaid v. Indianapolis, etc., Co., 124 

Ind. 577, 259, 798 

King V. City of Madison, 17 Ind. 48, 209 
Kinser v. De Witt, 7 App. 597, 

91, 152, 157, 162, 710 
Kiphart v. Pittsburgh, etc., R. Co., 7 

App. 122, 159, 709, 720 

Kirkland v. Board, etc., 142 Ind. 123, 

153, 185, 414, 415 
Kisler v. Cameron, 39 Ind. 488, 63, 71 

Kistner v. Citv of Lafayette, 100 Ind. 

210, 61, 120, 144, 150, 151, 226, 262, 326 
Kizer v. Town of "Winchester, 141 Ind. 

694, 25, 820, 821, 823 

Klein v. Tuhey, 13 App. 74, 711, 720 

Koerner v. State, 148 Ind. 158, 55 

Koffman v. Stein, 138 Ind. 49, 3, 325 

Koons V. Cluggish, 8 App. 232, 708, 791 
Korrady v. Lake Shore, etc., R. Co., 

131 Ind. 261, 150 

Krath v. Larrew, 104 Ind. 363, 752, 783 
Kritsch v. Helm, 45 Ind. 438, 277, 292 

Kuntz V. Sumption, 117 Ind. 1, 

19, 25, 29, 159, 711, 720 
Kyle V. Malin, 8 Ind. 34, 61, 116 



Laclede Gas, etc., Co. v. Murphv, 170 

U. S. 78, ' 17 

Lafayette, etc., Co. v. Geiger, 34 Ind. 

185, 38, 48, 47 

Lake Co. v. Graham, 130 U. S. 674, 

49, 61, 52, 175, 479 
Lake County v. Rollins, 130 U. S. 662, 

50,52 
Lake Erie, etc., R. Co. v. Acres, 108 

Ind. 548, 228 

Lake Erie, etc., R. Co. v. Bowker, 9 

App. 428, 84, 159, 283, 722, 723 

Lake Erie, etc., R. Co. v. Brafford, 15 ' 

App. 655, 80 

Lake Erie, etc., R. Co. v. City of Ko- 

komo, 130 Ind. 224, 225, 311 



TABLE OF CASES, 



XXXIX 



\_Iieferences are to Pages. "^ 



Lake Erie, etc., R. Co. v. Citv of No- 

blesville, 16 App. 20, 78, 79,' 111, 762, 781 
Lake Erie, etc., R. Co. v. Citv of No- 
bles ville, 15 App. 697, 

78, 79, 80, 111, 762, 781 
Lake Erie, etc., R. Co. v. Hancock, 15 

App. 104, 80 

Lake Erie, etc., R. Co. v. Heath, 9 Ind. 

558, 27 

Lake Erie, etc., R. Co. v. Town of Bos- 
well, 137 Ind. 336, 219, 220, 225 
Lake Erie, etc., R. Co. r. Walters, 9 

App. 684, 721, 723 

Lake Erie, etc., R. Co. Walters, 13 

App. 275, 723, 729 

Lake Erie, etc., R. Co. v. Yard, 8 App. 

199, 80 

Lake Shore, etc., R. Co. v. Boyts, 16 

App. 640, 268, 869, 870 

Lake Shore, etc., R. Co. v. Cincinnati* 

etc., R. Co., 116 Ind. 578, 224 

Lake Shore, etc., R. Co. v. Pinchin, 112 

Ind. 592, 803 

Lake Shore, etc., R. Co. v. Smith, 131 

Ind. 513, 208 

Ldmmers v. Balfe, 41 Ind. 218, 

288, 289, 290, 291 
Langenberg v. Decker, 131 Ind. 471, 38, 40 
Langohr v. Smith, 81 Ind. 495, 288, 295 
Langsdale v. Nichlaus, 38 Ind. 289, 280 
La Plante v. Lee, 83 Ind. 155, 749 

Earned v. Maloney, 19 App. 199, 729 

Law V. Johnston, 118 Ind. 261, 

25, 29, 159, 420, 711, 720 
Laverty v. State, 109 Ind. 217, 27 

Law v.'Madison, etc., Co., 30 Ind. 77, 47 
Lawson v. De Bolt, 78 Ind. 563, 57 

Lebanon, etc., Co. v. Leap, 139 Ind. 

443, 229 

Ledgerwood v. State, 134 Ind. 81, 26 

Leeds v. City of Richmond, 102 Ind. 

372, 28, 117, 152, 156, 157 

160, 161, 238, 253 
Leedy v. Town of Bourbon, 12 App. 

486, 764, 828 

Leeper v. City of South Bend, 106 Ind. 

375, 210, 687 

Leeper v. Texas, 139 U. S. 462, 20, 29 

Legler v. Paine, 147 Ind. 181, 42, 67, 754 
Lehigh Water Company's Appeal, 102 

Pa. St. 515, 10 

Leisy v. Hardin, 135 U. S. 100, 1, 2, 3, 4 
Leloup V. Port of Mobile, 127 U. S. 640, 2, 4 
Lent V. Tillson, 140 U. S. 316, 19, 20, 28 
Leonard v. City of Indianapolis. 9 App. 

262, 210, 211, 212, 360, 687 

Le Sing, In re, 43 Fed. Rep. 359, 21 

Lewis V. Albertson, App. Ct., May 24, 

1899, 58, 254, 708, 709, 710,' 711, 717 

720, 721, 722 
Lewisville, etc., Co. v. State, 135 Ind. 

49, 115, 739, 740 

License Cases, 5 How. 504, 22 



Lilly V. City of Indianapolis, 149 Ind. 

648, 122, 399 

Lima Tp. v. Jenks, 20 Ind. 301, 47 

Linville v. Leininger, 72 Ind. 491, 104 

Linville v. State, 130 Ind. 210, 282 

Lipes V. Hand, 104 Ind. 503, 282, 303, 717 
Lippman v. City of South Bend, 84 Ind. 

276, 79, 81 

Litchfield v. Ballou, 114 U. S. 190, 

51, 173, 694 
Livingston County v. Portsmouth 

Bank, 128 U. S. 102, 172 

Loeb V. City of Attica, 82 Ind. 175, 

31,62, 129 
Loeb V. Trustees of Columbia Tp., 91 

Fed. Rep. 37, 19 

Loftin, etc., v. Citizens' Nat. Bank, 85 

Ind. 341, 46, 206 

Logansport Gas Co. v. Citv of Peru, 89 

Fed. Rep. 185, " 21 

Long V. City of Portland, 151 Ind. 442, 

124, 136 
Longworth, etc., Co. v. Common Coun- 
cil, etc., 32 Ind. 322, 320 
Long Island, etc., Co. v. Brooklyn, 166 

U. S. mQ, 13, 15 

Loughbridge v. City of Huntington, 56 

Ind. 253, 277 

Los Angeles City Water Co. ?;. City of 

Los Angeles, 88 Fed. Rep. 720, 

69, 370, 462 
Lostutter v. City of Aurora, 126 Ind. 

436, 

30, 69, 157, 223, 226, 245, 247, 259, 798 
Louisiana v. Mayor of New Orleans, 109 

U. S. 285, 9, 13, 23 

Louisiana v. Wood, 102 U. S. 294, 173 

Louisville Gas Co. v. Citizens' Gas 

Light Co., 115 U. S. 683, 9, 12 

Louisville, etc., R. Co. v. Bonev, 117 

Ind. 501, ' 283, 723 

Louisville, etc., R. Co. v. Creek, 130 

Ind. 139, 236, 804 

Louisville, etc., R. Co. v. Davis, 7 Apo. 

222, 135, 151 

Louisville, etc., Co. v. Downey, 18 App. 

140, 269, 805 

Louisville, etc., R. Co. v. Hart, 2 App. 

130, 267 

Louisville, etc., R. Co. v. Head, 80 Ind. 

117, 269 

Louisville, etc., R. Co. v. Hixon, 101 

Ind. 337, 62. 751 

Louisville, etc., R. Co. v. Miller, 12 

App. 414, 270 

Louisville, etc., R. Co. v. Phillips, 112 

Ind. 59, 268, 269 

Louisville, etc., R. Co. v. Pritchard, 

131 Ind. 564, 267, 830 

Louisville, etc., R. Co. y. Rush, 127 

Ind. 545, 268, 870 

Louisville, etc., R. Co. v. Schmidt, 81 

Ind. 264, 802 



xl 



TABLE OF CASES. 



iBeferences are to Pages.} 



Schmidt, 134 



Schmidt, 147 
268, 

V. Smith, 91 
267, 

V. Stanger, 7 



App. 

283, 



119, 

250, 
752, 
34 



Louisville, etc., E. Co. v. 

Ind. 16, 
Louisville, etc., R. Co. v. 

Iiid. 638, 
Louisville, etc., R. Co. 

Ind. 119, 
Louisville, etc., R. Co. 

App. 179, 
Louisville, etc., R. Co. v. State, 

377, 
Louisville, etc., R. Co. v. State, 122 Ind. 

442, 283, 

Louisville, etc., R. Co. v. Stommel, 

126 Ind. 35, 269, 

Louisville, etc., R. Co. v. Wright, 115 

Ind. 378, 
Low V. Evans, 16 Ind. 486, 
Lowe V. Board, etc., 94 Ind. 553, 
Lower v. Wallick, 25 Ind. 68, 
Lowrev v. Citv of Delphi, 55 Ind 
62, 149, 226, 230, 248, 249 
Lucas V. Board, etc., 44 Ind. 524, 
Lucas V. Herbert, 148 Ind. 64, 
Lucas V. Shepard, 16 Ind. 368, 
Lucas V. State, 86 Ind. 180, 
Lutz V. City of Crawfordsville, 109 Ind. 
66, 129, 

Luxton V. North River, etc., Co., 153 

U. S. 525, 
Lyng V, Michigan, 135 XJ. S. 161, 
Lvon V. City of Logansport, 9 App. 21, 

244, 

Mc 

McCall V. California, 136 U. S. 104, 

1. 2, 5, 
McClelland v. State, 138 Ind. 321, 
McCollum V. Uhl, 128 Ind. 304, 
McComas v. Krug, 81 Ind. 327, 43 

McCormick v. President, etc., 1 Ind. 

48, 29, 224, 

McCormick, etc., Co. v. Gray, 100 Ind. 

285, 
AIcCool V. State, 23 Ind. 127, 31, 

McCov V. Able, 131 Ind. 417, 254, 

McCullev V. State, 62 Ind. 428, 
McDonald v. Payne, 114 Ind. 359, 
McDonald v. Yeager, 42 Ind. o&8, 
McDougal V. City of Brazil, 83 Ind. 

211, 
McEnenev v. Town of Sullivan, 125 

Ind. 407, 25, 29, 124, 159, 160, 

275, 294, 708, 709, 711, 716, 720, 730, 

McEwen v. Gilker, 38 Ind. 233, 277, 

McFee v. Town of Greenfield, 62 Ind. 

21, 
McGahan v. Indianapolis, etc., Co., 140 

Ind. 335, 
McGill V. Bruner, 65 Ind. 421, 

288, 290, 291, 
McGlothlin v. Pollard, 81 Ind. 228, 
McGregor v. City of Logansport, 79 

Ind. 166, 113, 114, 



268 

270 

830 

870 

723 

723 

831 

238 
95 

282 
31 

859 

, 60 

128 

37 

755 

203 

6 
4 

251 



137 

35 

198 

, 57 

297 

238 
781 
293 
27 
224 
290 

207 

198 
823 
292 

766 

229 

717 
34 

147 



Mcllvain r. State, 87 ind. 602, 781 

Mclntyre v. Marine, 93 Ind. 193, 57 

Mclntyre v. State, 5 Blackf. 384, 29 

McKernan v. City of Indianapolis, 38 

Ind. 223, 224, 296, 297, 302 

McKinney v. Town of Salem, 77 Ind. 

213, 34, 35, 130 

McLaughlin v. City of South Bend, 126 

Ind. 471, 2, 124, 137 

McLaughlin v. Shelbv Tp., 52 Ind. 114, 

908, 909 
McLaughlin v. State, 45 Ind. 338, 27 

McMahan v. Works, 72 Ind. 19, 27 

McNaughton v. City of Elkhart. 85 Ind. 

384, 243,252,802,805 

McNultv V. Connew, 50 Ind. 569, 60, 76, 329 
McQueen v. City of Elkhart, 14 App. 

671, 231, 241, 251 

McVey v. Heavenridge, 30 Ind. 100, 750 
McWhinnev v. Citv of Indianapolis, 

98 Ind. 182, " 212, 213, 214 

McWhinney v. City of Indianapolis, 

101 Ind. 150, 212, 213, 319 

McWhinnev v. City of Logansport, 132 

Ind. 9, " 212 



M 



Macv u. City of Indianapolis, 17 Ind. 

267, 89, 253, 254, 257 

Madison, etc., R. Co. v. Taffe, 37 Ind. 

361, 80, 120, 151, 263 

Magee v. Overshiner, 150 Ind. 127, 

226, 263, 797 
Maguire v. Smock, 42 Ind. 1, 275 

Maine v. Grand Trunk R. Co., 142 Ind. 

217, 6 

Manning, In re, 139 U. S. 504, 23 

Mannix v. State, 115 Ind. 245, 68 

Mansur v. Haughev, 60 Ind. 364, 217 

Mansur v. State, 60 Ind. 357, 217 

Marks v. Trustees, etc., 37 Ind. 155, 41, 50 
Martin v. City of Evansville, 32 Ind. 

85, 146 

Martin v. Town of Rosedale, 130 Ind. 

109, 2, 124, 137, 765 

Martindale v. Palmer, 52 Ind. 411, 107 

110, 121, 275, 277, 278, 289, 292, 782, 789 
Marion, etc., R. Co. v. Carr, 10 App. 

200, 273 

Marion, etc., R. Co. ■y. Schafter, 9 App. 

486, 272 

Massachusetts v. Western IT. Tel. Co., 

141 U. S. 40, 6 

Mather v. Simonton, 73 Ind. 595, 316 

Mattingly v. City of Plymouth, 100 Ind. 

545, 89, 90, 91 

Mattinglv v. District of Columbia, 97 

U. S. 687, 19 

Mauck V. State, 66 Ind. 177, 221 

Maxwell v. Board, 119 Ind. 20, 25, 30 

Mayor v. Gill, 31 Md. 375, 694 

Mayor, etc., v. Roberts, 34 Ind. 471, 253 
Mayor v. Smith, 57 Ind. 152, 171 



TABLE OF CASES. 



xli 



\_Bcferences are to Pages.'] 



Mayor, etc., v. State, 57 Ind. 152, 

31, 48, 107, 114, 171, 197, 198, 199, 201, 317 
Mavor, etc., v. Weems, 5 Ind. 547, 317 

Meader r. Town of Fowler, 74 Ind. 601, 766 
Memphis Gas Co. r. Shelby County, 

109 U. S. 398, 13 

Mendenhall r. Clugish, 84 Ind. 94, 

795, 799, 807 
Mercer r. Corbin. 117 Ind. 450, 

244, 768, 867 
Mercer County r. Racket, 1 Wall. 83, 172 
Merchants', etc., Bank v. Pennsyl- 
vania, 167 U. S. 461, ' 15 
Meriwether v. Garrett, 102 V. S. 472, 

8, 9, 34 
Merrill v. Abbott, 62 Ind. 549, 

275, 276, 711 
Merrill v. Monticello, 138 U. S. 673, 

400, 777, 913 
Meyer V. City of Richmond. 172 IJ. S. 

82, ' ' 16 

Meyer v. Fromm, 108 Ind. 208, 770, 800 
Middleton v. Greeson, 106 Ind. 18, 

908, 917 
Middleton v. State, 120 Ind. 166, 104 

Midland K. Co. v. Wiicox, 122 Ind. 84, 252 
Milford V. Milford, etc., Co., 124 Pa. St. 

610, 400 

Miller v. Board, etc., 66 Ind. 167, 

116, 171 
Miller v. City of Indianapolis, 123 Ind. 

196, ' 218, 220, 222, 223, 303 

683, 811, 813, 814 
Miller v. City of Valparaiso, 10 App. 

22, 144, 204 

Miller v. Embree, 88 Ind. 133, 100 

Miller v. Louisville, etc., R. Co., 128 

Ind. 97, 236, 804 

Miller v. Mayor of New York, 109 U. S. 

385, 6 

Miller v. State, 106 Ind. 415, 98, 358 

Miller v. Terre Haute, etc., R. Co., 144 

Ind. 323, 870 

Miller v. Texas. 153 U. S. 535, 15, 23 

Millikan v. City of Lafayette, 118 Ind. 

323 213 214 

Miflikan v. Hamm, 104 Ind. 498, 

213, 214, 688 
Millildn v. Town of Bloomington, 49 

Ind. 62, 753, 783 

Millisor v. Wagner, 133 Ind. 400, 809 

Milwaukee Electric R. & L. Co. v. City 

of Milwaukee, 87 Fed. 577, 22 

Minneapolis R. Co. v. Beckwith, 129 

V. S. 26, 16, 20 

Minnesota v. Barber, 136 U. S. 313, 1 

Mississinewa Mining Co. v. Patton, 129 

Ind 472 229 

Missouri v. Harris, 144 U. S. 210, 11 

Mitchell V. Wiles, 59 Ind. 364, 

69, 92, 108, 112, 121 
Mitchell V. Williams, 27 Ind. 62, 705 

Moberry v. City of Jeffersonville, 38 

Ind. 198, 62, 64, 275, 277, 291, 292, 793 



Mobile Co. v. Kimball, 102 U. S. 691, 

7, 8, 19 
Mobile V. Watson, 116 U. S. 289, 9 

Mock V. City of Muncie, 9 Aryp. 536, 303 
Mode V. Beasley, 143 Ind. 306, 

40, 41, 42, 303, 370, 751 
Mohan v. Jackson, 52 Ind. 599, 

37, 44, 45, 67, 84 
Montgomery v. Wasem, 116 Ind. 343, 258 
Moore v. Cline, 61 Ind. 113, 794, 795 

Moore v. City of Indianapolis, 120 Ind. 

483, 31, 33, 35, 129, 130, 131, 132, 669, 766 
Moore v. Kessler, 59 Ind. 152, 71 

Moran v. New Orleans, 112 U. S. 69, 7 

Morgan's Co. v. Louisiana Board, 118 

U. S. 455, 8 

Morris v. Powell, 125 Ind. 281, 35, 36 

Morris u. Watson, 8 App. 1, 293 

Morrison v. Board, etc., 116 Ind. 431, 

240, 803 
Morrison v. Jacobv, 114 Ind. 84, 213 

Morris v. Watson,"'8 App. 1, 283, 298, 310 
Mott V. State, 145 Ind. 353, 97 

Moulton V. City of Evansville, 25 Fed. 

Rep. 382, 172 

Mount V. State, 90 Ind. 29, . 41, 887 

Mount Pleasant v, Beckwith, 100 U. S. 

514, 9 

Mowbray v. State, 88 Ind. 324, 69, 104 

Mugler V. Kansas, 123 U. S. 623, 16, 22, 23 
Muhler v. Hedekin, 119 Ind. 481, 

43, 68, 112, 694, 698 
Mullikin v. City of Bloomington, 72 

Ind. 161, 61, 212, 319, 817, 818, 819 

Mulvane v. City of S. Topeka, 45 Kan. 

45, 232 

Muncie, etc., R. Co. v. Mavnard, 5 

App. 372, " 271, 272 

Murphey v. Beard, 138 Ind. 560, 13, 34, 720 
Murphy v. City of Crawfordsville, 83 

Ind. 76, 134 

Murphy v. City of Indianapolis, 83 Ind. 

76, 230, 232, 803 

Murphy v. State, 97 Ind. 579, 27 

Murray v. Charleston, 96 U. S. 432, 8 

Musselman v. Manly, 42 Ind. 462, 256, 260 
Mustard v. Hoppes, 69 Ind. 324, 70 

Myers^i-City of Jeffersonville, 145 Ind. 

431, 52, 171, 173, 174, 179, 672, 777 

Myers v. Indianapolis, etc., R. Co., 12 

App. 170, 412, 416, 420, 436 



N 



Naltner v. Blake, 56 Ind. 127, 
Natal V. Louisiana, 139 IJ. S. 621, 
Natal V. State, 139 U. S. 621, 
National Fertilizer Co. v. Lambert, 48 

Fed. Rep. 458, 
Nave V. Flack, 90 Ind. 205, 
Neal V. Delaware, 103 V. S. 370, 
Nealus v. Hayward, 48 Ind. 19, 

123, 760, 765, 



294 

22 27 

141 

240 
20 

769 



xiii 



TABLE OF CASES. 



iBeferences a 

Nelson v. City of La Porte, 33 Ind. 258, 

140, 278 
Kelson V. Fleming, 56 Ind. 810, 859 

Nelson v. State, 17 App. 403, 35, 130 

Nelson v. St. Martin's Parish, 111 U. S. 

716, 10 

Nesbit V. Riverside Independent Dist., 

144 U. S. 611, 50 

New V. Walker, 108 Ind. 365, 865, 879 

Newcomb v. City of Indianapolis, 141 

Ind. 451, 61, 116, 369, 385, 396 

398, 461, 597, 747 

Newman v. Sylvester, 42 Ind. 106, 

69, 106, 278 

Newpoint Lodge, etc., v. Town of New- 
point, 138 Ind. 141, ^ _ 916 

Newport, etc., Bridge Co. v. L^nited 
States, 105 IT. S. 470, 6 

Newsom v. Board, etc., 103 Ind. 526, 

212, 319 

New Albany, etc., Co. v. Crambo, 10 
App. 360, 109, 110, 124, 254, 293 

711, 718, 720, 721, 723 

New Albany, etc., Co. v. Smith, 23 Ind. 
353, 171, 198 

New Albany, etc.. Mill v. Cooper, 131 
Ind. 363, 262 

New Orleans v. Clark, 95 U. S. 644, 173 

New Orleans v. Water Works Co., 142 
U. S. 79, 9, 13 

New Orleans Gas Co. v. Louisiana Light 
Co., 115 U. S. 650, 9, 10, 12, 13, 16 

New Orleans, etc., R. Co. v. New Or- 
leans, 143 U. S. 192, 13 

New Orleans Water- Works Co. v. Lou- 
isiana, etc., Co., 125 IT. S. 18, 8 

New Orleans Water- Works v. New 

Orleans, 164 U. S. 471, 13 

New Orleans Water-Works Co. v. 

Rivers, 115 U. S. 674, 9, 12 

New York v. Squire, 145 IT. S. 175, 13, 17 

New York, etc., R. Co. v. Bristol, 151 
U. S. 556, 12, 16, 266, 385, 476 

NewYork, etc.,R.Co.'u.StateofN.Y., 
165 U. S. 628, 2 

Niagara Fire Ins. Co. v. Greene, 77 

Ind. 590. 162 

Nichols, In re, 48 Fed. Rep. 164, 2 

Nichols V. State, 89 Ind. 298, 868 

Niklaus v. Conkling, 118 Ind. 289, 

280, 281, 282 

Nixon V. State, 76 Ind. 524, 81 

Noble V. Board, etc., 101 Ind. 127, ■ 

28, 67, 754 

Noble V. City of Vincennes, 42 Ind. 125, 

118, 197, 275 

Noblesville, etc., Co. v. Teter, 1 App. 
322, 135, 231, 245 

Noble School, etc., Co. v. Washington 
School Township, 4 App. 270, 909 

Noland v. Busby, 28 Ind. 154, 86 

Norfolk, etc., R. Co. v. Pennsylvania, 
136 IT. S. 114, 5, 14 



re to Pages.^ 

North Bank v. Porter Township, 110 

U. S. 608, 52 

Norwood V. Baker, 172 U. S. 269, 19, 717 







O'Boyle v. Shannon, 80 Ind. 159, 

119, 164, 167 
Ogden V. County of Daviess, 102 IT. S. 

634, 172 

Ogden City v. Armstrong, 168 IT. S. 224, 58 
Ogg V. City of Lansing, 35 Iowa 495, 137 
O'Hara v. State, 21 App. 320, 762 

Ohio Life Ins. Co. v. Debolt, 16 How. 

416, 10, 115 

Ohio, etc., R. Co. v. Hill, 7 App. 255, 

268, 269 
Ohio, etc., R. Co. v. Hill, 117 Ind. 56, 

269 831 869 
Ohio, etc., W. Co. v. Simon, 40 Ind'. 278,' 128 
Ohio, etc., R. Co. v. Trowbridge, 126 

Ind. 391, 830 

Ohio, etc., R. Co. v. Walker, 113 Ind. 

196, 268 

Ohning v. City of Evansville, 66 Ind. 

59, 98 

Oppenbeimer v. Pittsburg, etc., R. Co., 

85 Ind. 471, 328, 330 

Orient Ins. Co., etc., v. Daggs, 172 U. S. 

557, 16 

Osborne v. Mobile, 16 W^all. 479, 4 

Osborne v. State, 128 Ind. 129, 43, 98 

Ouachita Packet Co. v. Aiken, 121 IT. S. 

444, 7, 8 

Over V. City of Greenfield, 107 Ind. 

231, 117, 118, 164 

Overshiner v. Jones, 66 Ind. 452, 793, 794 
Owen V. Phillips. 73 Ind. 284, 128 



Pacific Express Co. v. Seibert, 142 U. S. 

339, 6 

Packitt Co. V. Catlettsburg, 105 U. S. 

559, 7, 8 

Packett Co. v. Keokuk, 95 U. S. 80, 8 

Packett Co. v. St. Louis, 100 IT. S. 423, 8 
Palmer v. McMahon, 133 U. S. 660, 19, 29 
Palmer v. Nolting, 13 App. 581, 417, 436 
Palmer v. Stumph, 29 Ind. 329, 

29, 41, 46, 47, 224, 254, 277, 293, 295 
Park V. Board, etc., 3 App, 536, 

134, 230, 231, 237 
Parker v. State, 133 Ind. 178, 57, 69 

Park Countv Coal Co. v. Campbell, 140 

Ind. 28, ^ 30 

Parry v. City of Richmond, 27 Ind. 66, 298 
Parsons v. Durand, 150 Ind. 203, 68, 76 
Parvin v. Wimberg, 130 Ind. 561, 35 

Patoka Tp. v. Hopkins, 131 Ind. 142, 

156, 258 
Paul V. Town of Walkerton, 150 Ind. 

565, 17, 28, 33, 323, 679, 749, 819 



TABLE OF CASES. 



xliii 



[References are to Pages.'] 



Paul V. Virginia, 8 "Wall. 168, 14 

Paulsen v. Portland, 149 U. s. SO, 19, 20 
Peake v. New Orleans, 139 U. S. 842, 280 
Peck V. City of Michigan City, 149 Ind. 

670, ' 153, 154, 163, 710 

Peckham v. Millikan, 99 Ind. 352, 208, 213 
Pembina Co. v. Pennsylvania, 125 U. 

S. 181, 14, 16 

Pennie v. Reis, 132 U. S. 464, 9 

Penso V. McCormick, 125 Ind. 116, 231 

Pennsylvania Co. v. Frund, 4 App. 469, 

151, 267, 830 
Pennsylvania Co. v. Hensil, 70 Ind. 

569, 120, 151, 152 

Pennsylvania v. Horton, 132 Ind. 189, 

62, 151, 751 
Pennsylvania Co. v. Krick, 47 Ind. 

368,' 268 

Pennsylvania Co. v. Marion, 123 Ind. 

415, ' 803 

Pennsylvania Co. v. Meyers, 136 Ind. 

242,' ' 269,831 

Pennsylvania Co. r. Piotz, 125 Ind. 26, 

221, 223 
Pennsylvania Co. v. Stanley, 10 App. 

421,' ' 25,266,297 

Pennsylvania Co. v. State, 142 Ind. 428, 

40, 42, 370 
Pennsylvania Co. v. Stegemeier, 118 

Ind.' 305, 120, 151, 245 

Pensacola Tel. Co. v. Western U. Tel. 

Co., 96 U. S. 1, 4 

People V. Squire, 145 U. S. 175, 16 

People V. Squire, 107 N. Y. 593, 13, 17, 42 
Perry v. Barnett, 65 Ind. 522, 236 

Peru, etc., R. Co. v. Hanna, 68 Ind. 

562, 280, 283, 294, 723 

Pettis V. Johnson, 56 Ind. 139, 

117, 134, 227, 236, 246, 260, 867 
Pfaff, etc., V. Terre Haute, etc., R. Co., 

108 Ind. 144, 211 

Phenix Ins. Co. v. Burdett, 112 Ind. 

204, 57 

Phillips V. Jollisaint, 7 App. 458, 

290, 295, 708 
Phipps V. State, 7 Blackf. 512, 221 

Pidgeon v. McCarthy, 82 Ind. 321, 222, 811 
Pierce v. iEtna Ins. Co., 131 Ind. 284, 34 
Pierce v. Pierce, 17 App. 107, 131 

Pine Civil Township v. Huber Mfg. 

Co., 83 Ind. 121, 117 

Pittsburg, etc., R. Co. v. Backus, 154 

U. S. 421, 6, 18, 25, 44, 46, 211 

Pittsburgh, etc., R. Co. v. Backus, 133 

Ind. 625, 655, 6, 18, 25, 44, 46, 211 

Pittsburg, etc., R. Co. v. Bennett, 9 

App. 92, 151 

Pittsburg, etc., Co. v. Board, 172 U. S. 

^Z, 6, 19 

Pittsburgh, etc., R. Co. v. Brown, 67 

Ind. 45, 869, 870 

Pittsburg, etc., R. Co. v. Burton, 139 

Ind. 357, 268, 871 



Pittsburg, etc., R. Co. v. City of Indian- 
apolis, 147 Ind. 292, 18, 33, 391 
Pittsburg, etc., R. Co. v. Harden, 137 

Ind. 486, 31, 48, 197 

Pittsburg, etc., R. Co. v. Harper, 11 

App. 481, 265 

Pittsburg, etc., R. Co. v. Hays, 17 App. 

261, 120, 121, 124, 159, 283 

710, 712, 715, 723 
Pittsburg, etc., R. Co. v. Kitley, 118 

Ind. 152, 868, 869 

Pittsburg, etc., R. Co. v. Laufman, 78 

Ind. 319, 267 

Pittsburg, etc., R. Co. v. Noftsger, 148 

Ind. 101, 219, 246, 801, 812 

Pittsburgh, etc., R. Co. v. Shaw, 15 

App. 173, 870 

Pittsburgh, etc., R. Co. v. Town of 

Crown Point, 150 Ind. 536, 

112, 115, 116, 123, 218, 220, 221 
709, 730, 765, 767, 769, 797, 805 
Pittsburg, etc., Co. v. Yundt, 78 Ind. 

373, 152 

Platter v. Board, etc., 103 Ind. 360, 

61, 253, 762 
Platter v. City of Seymour, 86 Ind. 323, 

238, 254, 275, 285, 799 
Plessy V. Ferguson, 16 Sup. Ct. R. 1138, 14 
Plummer v. State, 135 Ind. 308, 94, 95, 760 
Porter v. City of Tipton, 141 Ind. 347, 

416, 708, 714, 717, 720, 721, 725 
Porter v. Midland R. Co., 125 Ind. 476, 

254, 263, 264 
Porter v. State, 141 Ind. 488, 828 

Porter v. Stout, 73 Ind. 3, 807 

Portland, etc., Co. v. Keen, 135 Ind. 

54, 227 

Postal, etc., Cable Co. v. Adams, 155 

U. S. 688, 6 

Postal, etc., Co. v. Baltimore, 156 XJ. S. 

210, 4 

Postal, etc., Co. v. Charleston, 153 U. S. 

692, 4 

Pow V. Beckner, 3 Ind. 475, 94, 760 

Powell V. City of Greensburg, 150 Ind. 

148, 225, 310, 311, 322, 323 

Powell V. City of Madison, 107 Ind. 106, 

52, 174, 207, 672 
Powell V. Pennsylvania, 127 U. S. 678, 

16, 20 
Powers V. Town of New Haven, 120 

Ind. 185, 254, 788, 789, 799 

Praig V. Western, etc., Co., 143 Ind. 

358, 415 

Prather v. Jeffersonville, etc., R. Co., 

52 Ind. 16, 41, 29, 297 

Prather v. Western, etc., Co., 89 Ind. 

501, 297 

Pratt V. Luther, 45 Ind. 250, 

754, 763, 777, 793 
President, etc., v. Bank of State, etc., 

16 Ind. 105, 209 

President, etc., v. City of Indianapo- 
lis, 12 Ind. 620, ' 119 



xliv 



TABLE OF CASES. 



{Beferences a 

President, etc., v. Dusoiichett, 2 Ind. 

586, 240, 802 

Presser v. Illinois, 116 U. S. 252, 15 

Pressiey v. Board, etc., 80 Ind. 45, 83 

Pressley v. Lamb, 105 Ind. 171, 44 

Prezinger v. Harness, 114 Ind. 491, 253 
Princeton v. Vierling, 40 Ind. 340, 767 

Protzman v. Indianapolis, etc., E. Co., 

9 Ind. 467, 259, 263, 264 

Provident Savings, etc., v. Mayor, 113 

U. S. 506, 20 

Pugh V. Irish, 43 Ind. 415, 86 

Pullman, etc., Co. v. Hay ward, 141 

U. S. 36, _ 6, 211 

Pullman, etc., Co. v. Pennsylvania, 141 

U. S. 18, 6 

Pumpelly v. Green Bay Co., 13 Wail. 

166, 30 

Q 

Qualter v. State, 120 Ind. 92, 70 

Quick V. Taylor, 113 Ind. 540, 859 

Quigley v. City of Aurora, 50 Ind. 28, 80, 82 
Quill V. Citv of Indiananolis, 124 Ind. 
292, " 50, 52, 138, 153, 159, 276, 282 

711, 712, 714, 717, 721, 725, 726 
Quinn v. State, 35 Ind. 485, 35 



R 



Eahrer, In re, 140 U. S. 545, 1, 2. 4 

Eailroad Co. v. Butler, 103 Ind. 31, 870 
Railroad Co. v. Cheyenne, 113 U. S. 516, 58 
Railroad Co. v. Fenn, 3 App. 250, 870 

Railroad Co. v. Gibbes, 142 XT. S. 386, 17 
Railroad Co. v. Harrington, 131 Ind. 

426, 122 

Railroad Co. v. Husen, 95 TJ. S. 465, 16, 147 
Railroad Co. v. Marvland, 21 AVali. 456, 7 
Railroad Co. v. Pinchin, 112 Ind. 592, 240 
Railroad Co. v. Richmond, 96 U. S. 521, 19 
Railroad Co. v. Schmidt, 126 Ind. 290, 268 
R^ls County ^;. United States, 105 U. S. 

733, 172 

Ralston v. Lothain, 18 Ind. 303, 33 

Rassier v. Grimmer, etc., 130 Ind. 219, 

29, 224. 827 
Raterman v. West. U. Tel. Co., 127 U. S. 

648, 4 

Rausch y. Trustees, etc., 107 Ind. 1, 

158, 282 
Ray V. Citv of Jeffersonville, 90 Ind. 567, 

29, 30, 91, 224, 275, 279, 280, 282, 288 

289, 290 
Read v. City of Plattsmouth, 107 U. S. 

568, 173 

Read v. Yeager, etc., 104 Ind. 195, 207, 227 
Reckert v. City of Peru, 60 Ind. 473, 916 
Redden v. Town of Covington. 29 Ind. 

118, 752,766,781,782 

Redwood, etc., Ass'n v. Bandv, 93 Ind. 

246, 703 



re to Pages,'] 

Reed v. Town of Orleans, 1 App. 25, 

763, 913 
Reeves v. Allen, 42 Ind. 359, 77 

Reeves v. Grottendick, 131 Ind. 107, 

91, 279, 280, 281, 282, 283, 288, 289, 290, 292 

717, 730 
Eehman v. Xew Albany, etc., R. Co., 

8 App. 200, 263 

Reinkin v. Fuehring, 130 Ind. 382, 436 

Relender v. State, 149 Ind. 283, 43 

Reniban v. Wright, 125 Ind. 536, 126, 703 
Reynolds v. Bo wen, 138 Ind. 434, 210, 786 
Rhodes v. Town of Briglitwood, 145 

Ind. 21, 218, 221, 222, 355, 356, 742 

743, 810, 811, 813, 814 
Rice V. Citv of Evansville, 108 Ind. 7, 

lis, 154, 254, 255, 258 
Rich V. Mentz, 134 U. s. 632, 115 

Richcreek v. Moorman, 14 App. 370, 

717, 721, 725, 726 
Richmond v. Southern, etc., Co.. U. S. 

Sup. Ct., May 22, 1899, ' 17 

Richmond Gas Co. v. Baker, 146 Ind. 

600, 229 

Ricketts v. Spraker, 77 Ind. 371, 

124, 210, 253, 786 
Ridge V. City of Crawfordsville, 4 App. 

513, 79, 80 

Ridgwav v. Ludlow, 58 Ind. 248, 146 

Ridgewav v. West, 60 Ind. 371, 127 

Riggs V. State, 104 Ind. 261, 57 

Reichert v. Geers. 98 Ind. 73, 128 

Pieman r. Shephard, 27 Ind. 288, 207 

Riest u. City of Goshen, 42 Ind. 339, 

240, 249, 250, 802 
Rissing v. City of Ft. Wavne, 137 Ind. 

427, ' 301, 306, 309 

Robb V. City of Indianapolis, 38 Ind. 

49, ■ 116, 127, 135, 203 

Robbins v. Shelbv, etc., District, 120 

U. S. 489, ' 1, 2 

Robinson v. City of Evansville, 87 Ind. 

334, _ 61, 144, 326 

Robinson v. City of V^alparaiso, 136 Ind. 

616, 57, 153, 158, 159, 716, 719, 720, 721 

728, 729, 730 
Robinson u. Rippey, 111 Ind. 112, 301 

Eobinson v. Schenck, 102 Ind. 307, 

41, 42, 46, 47, 57, 206, 207, 914, 915 
Robinson v. Thrailkill, 110 Ind. 117, 223, 813 
Rock V. Stinger, 36 Ind. 346, 104 

Rockebrandt v. Citv of Madison, 9 App. 

227, ' 116, 735 

Rodgers v. Baltimore R. Co., 150 Ind. 

397, 268 

Rodgers v. City of Bloomington, Ind. 

App. Ct., Dec. 16, 1898, 240, 241, 803 
Rodgers v. State, 99 Ind. 218, 104 

Roeiker v. St. Louis, etc., R. Co., 50 

Ind. 127, 266 

Roll V. City of Indianapolis, 52 Ind. 

547, 107, 153, 154, 160 

Romaine v. Judson, 128 Ind. 403, 257 

Rcmia- v. City of Lafayette, 33 Ind, 30, 292 



TABLE OF CASES, 



xlv 



Root i\ Erdelmeyer, 37 Ind. 225, 
Ross V. City of Madison, 1 Ind. 281, 



>92, 2^ 



71- 



84, 109 
721, 792 
146 



'94 



259, 



117, 118, 254. 
Ross V. Faust, 54 Ind. 471, 
Ross y. Stackhouse, 114 Ind. 200, 
253, 254, 275, 276, 277, 28: 
Ross V. Thompson, 78 Ind. 90, 

30 21" 
Rowley t. Fair, 104 Ind. 189,' " 
Rozell V. Citv of Anderson, 91 Ind. 

591, ' 119, 153, 154 

Eozeile, In re, 57 Fed. Rep. 155, 2 

Rubottom V. MeClure, 4 Biackf. 505, 
Rand v. Town of Fowler, 142 led. 217, 
122, 127, 128; 384, 762, 764, 
Rusbville, etc., Co. v. City of Eush- 
ville, 121 Ind. 206, 

107, 116, 121, 141, 104, 171, 
Ryan v. Carran, 64 Ind. 345, 107, 236, 
Rykers, etc., Co. v. Scott 32 Ind. 3/, 



798 
104 



29^ 



69 



735 

262 

47 



Sackett i\ City of New Albany, 88 Ind. 

473, 51, 118 

Sackett v. State, 74 Ind. 486, 910 

Sale V. Aurora, 147 Ind. 327, 231, 797 

Sam Kee, In re, 31 Fed. Rep. 680, 21 

Sands v. Hatfield, 7 App. 357, 

708, 711. 717, 720, 730 
Sands v. Manistee River, etc., Co., 123 

U. S. 288, 7, 8 

San Diego, etc., Co. r. Jasper, 89 Fed. 

Rep. 274, ' 21 

Santa Clara County v. S. P. R. Co., 118 

U. S. 394, 16 

Scarry v. Lewis, 133 Ind. 96, 783, 786 

Schipper v. City of Aurora, 121 Ind. 

154, " 118, 152 

Scbissel v. Dickson, 129 Ind. 139, 214 
Scblicbter v. Pbillipy, 67 Ind. 201, 



155 

688 
113 

208 



Schmidt v. Failey, 147 Ind. 150, 
Schneck v. City of Jeffersonville, Sup. 

Ct., Dec. 20, 1898, 41, 50, 52, 173, 179 
School Tp. of Allen v. School Town of 

Macy, 109 Ind. 559, 908, 916 

School Town of Leisburg v. Plain 



School Tp., 86 Ind. 582. 
School Town of Milford 

126 Ind. 528, 
School Tp. of Princeton v. 

Ind. 187, 
School Tp. of Winamac v 

Ind. 229, 



916 



908, 
V. Powner, 

55, 762, 
G ebb art, 61 

84, 751 , 
. Hess, 151 

52, 778, 915 



910 

908 



153 



rcnces are to Pages.'] 

Scruggs V. Reese, 128 Ind. 399, 
Scudder v. Hinshaw, 134 Ind, 56, 

128, 133, 208, 767, 769, 797 
Searl v. School District, 133 V. S. 553, 28 
Sears v. Board, etc., 36 Ind. 267, 3, 32 

Second National Bank, etc., v. Town 



764, 



Schrodt V. Deputy, 88 Ind. 90, 208 

Scircle v. Neeves, 47 Ind. 289, 760 

Scotland County v. tlill, 132 U. S. 107, 172 
Scott V. Donald, 165 U. S. 58, 1,2 

Scott V. Hansheer, 94 Ind. 1, 48, 209 

Scott V. McNeal, 154 U.S. 34, 15 

Scott V. State, 151 Ind. 556, 55 

Scott V. Toledo, 36 Fed. Rep. 385, 17 

Scott V. ToYiR of Knightstown, 84 Ind. 
108, ' 210 



Seward 

351, 
Seward 

551, 
Seybold 



59. ■ 119 
140 Ind. 



22 
Ind. 

685, 735, 777 



of Danville, 60 Ind. 504, 
Secrist v. Board, etc., 100 Ind 
Senhenn v. City of Evansville, 

675, 134, 143, 231, 234, 235 

Sentell v. New Orleans, etc., R. Co., 
166 U. S. 698, 

City of Rising Sun 
207, 209, 
Town of Liberty, 142 Ind 

49, 738 
Terre Haute, etc., R. Co., 
18 App. 367, 267, 830 

Shellcross v. City of Jeffersonville, 26 

Ind. 193, 113, 146 

Shannon v. O'Boyle, 51 Ind. 565, 

119, 164, 167 
Shanklin v. Citv of Evansville, 55 Ind. 

240, " 218, 221, 811 

Shapleigh v. San Angelo, 167 U. S. 646, 9 
Sharpe v. St. Louis, etc., R. Co., 49 

Ind. 296, 263 

Shaw V. State, 56 Ind. 188, 131 

Shea V. Citv of Muncie, 148 Ind. 14, 

32, 35, 42, 62, 79, 110, 115, 123, 126 
129, 130, 326, 751, 769, 781 
Shellhouse v. State, 110 Ind. 509, 

217, 220, 221 
Shelton v. State, 53 Ind. 331, 104 

Shepardson v. Gillett, 133 Ind. 125, 770 
Sherlock v. Bainbridge, 41 Ind. 35, 146 
Sherman Co. v. Simons, 109 U. S. 735, 

51, 175, 470 
Sherwood v. City of Lafayette, 109 Ind. 

411, 34, 299 

Shideler v. Clinton Tp., 23 Ind. 479, 828 
Shields v. State, 149 Ind. 395, 27 

Shipley v. City of Terre Haute, 74 Ind. 

297, 200 

Shirk V. Board, etc., 106 Ind. 573, 859 

Shirk V. Wabash R. Co., 14 App. 126, 151 
Shnur v. Board, etc., Ind. App. Ct., 

April 7, 1899, 236 

Shoemaker v. United States, 147 L^. S. 

282, 19 

Shoultz V. McPheeters, 79 Ind. 373, 44 

Shrum v. Town of Salem, 13 App. 115, 

708, 788, 789, 791 
Shuck V. State, 136 Ind. 63, 37 

Shuman v. City of Ft. Wavne. 127 Ind. 

109, ' ' 2, 24, 204 

Siberry v. State, 149 Ind. 684, 27 

Sidener v. Turnpike Co., 23 Ind. 623, 

303, 809 
Silvers v. Needlinger, 30 Ind. 53, 

236, 245. 261 
Simmons i\ Vandyke, 138 Ind. 380, 94 

Simons v. Gavnor", 89 Ind. 165, 

120, 151, 245 



xlvi 



TABLE OF CASES. 



[Eeferences a 

Simonson v. Town of West Harrison, 5 

App. 459, 211, 212, 784 

Sims V. City of Frankfort, 79 Ind. 446, 

120, 226, 227, 229, 230, 246, 256, 258 
260, 297, 324, 867 
Sims V. Hines, 121 Ind. 534, 

277, 278, 289, 291, 292, 729 
Sims V. McClure, 52 Ind. 267, 917 

Sioux Citv Street R. Co. v. Sioux City, 

138 U. S. 98, 12 

Sirk V. Marion, etc., R. Co., 11 App. 

680, 272 

Skaffs;sv. City of Martinsville, 140 Ind. 

476S 31,122,203 

Slaughter-House Cases, 16 Wall. 36, 15, 16 
Slessman v. Crozier, 80 Ind. 487, 

765, 769, 780 
Sloan V. Faurot, 11 App. 689, 

412, 419, 420, 426, 721, 722 
Sloan V. State, 8 Blackf. 361, 

33, 60, 81, 111, 205, 780, 866 
Small V. City of Lawrenceburg, 128 

Ind. 231, 87, 209, 685 

Smelser v. Wayne, etc., Co., 82 Ind. 

417, 61 

Smith V. Board, etc., 6 App. 153, 69, 116 
Smith V. City of Madison, 7 Ind. 86, 

61, 116, 128, 132, 136 
Smith V. Corporation of Washington, 

20 How. 135, 30 

Smith V. Duncan, 77 Ind. 92, 255, 275 

Smith V. Fitzgerald, 24 Ind. 316, 128 

Smith V. Goodknight, 121 Ind. 315, 225 
Smith V. Moore, 90 Ind. 294, 38, 45 

Smith V. Wabash R. Co., 141 Ind. 92, 

269, 831 
Smyth V. Ames, 18 Sup. Ct. U. S. 418, 22 
Smyth V. Ames, 169 U. S. 466, 546, 21 

Snell V. State, 43 Ind. 359, 103 

Snoddy V. Wabash School Tp., 17 App. 

284, 909 

Snyder v. President, etc., 6 Ind. 237, 

29, 30, 224, 254, 767, 800 
Snyder v. Town of Rockport, 6 Ind. 237, 

89, 257, 797, 806 
Sohn V. Cambern, 106 Ind. 302, 26 

Soon Hing v. Crowlev, 113 U. S. 703, 20 
South Ottawa v, Perkins, 94 U. S. 260, 172 
Spades v. Phillips, 9 App. 487, 

404, 410, 412, 417, 427 
Spain, In re, 47 Fed. Rep. 208, 3 

Sparling, etc., v. Dwenger, 60 Ind. 72, 

752, 767, 797, 806, 827 

Sparta School Tp. v. Mendell, 138 Ind. 

188, 909 

Spaulding v. Nathan, 21 App. 122, 131 

Spencer v. Merchant, 125 U. S. 345, 19 

Spicer v. Board, etc., 126 Ind. 369, 

148, 226, 248 
Spiegel V. Gansberg, 44 Ind. 418, 

311 313 324 
Spies V. Illinois, 123 U. S. 131, ' ' 15 
St. Clair v. Kelley, 50 Ind. 535, 57 

St. Clair v. McClure, 111 Ind. 467, 213 



re to Pagcs.'l 

St. Louis, etc., R. Co. v. Mathias, 50 

Ind. 65, 80, 151 

St. Louis V. Western U. Tel. Co., 149 

U. S. 465, 4, 17 

St. Louis, V. Western V. Tel. Co., 148 

U. S. 92, 4, 17 

St. Tammany Water Works v. New 

Orleans, etc., Works, 120 U. S. 64, 9, 12 
Stackhouse v. City of Lafayette, 26 Ind. 

17, 107, 153, 157, 245 

Standard Oil Co. v. Bachelor, 89 Ind. 1, 207 
Standard Oil Co. v. Combs, 96 Ind. 179, 207 
Stanley v. Supervisors, 121 U. S. 535, 19 
State V. Adams, etc.. Express Co., 144 

Ind. 549, 6, 211 

State V. ^tna Life Ins. Co., 117 Ind. 

251, 34 

State V. Allen, 21 Ind. 516, 43 

State V. Arnold, 38 Ind. 41 , 751 

State V. Baker, 68 Ind. 417, 868 

State V. Baltimore, etc., R. Co., 120 

Ind. 298, 246, 868 

State V. Beckner, 132 Ind. 371, 103 

State V. Bemenderfer, 96 Ind. 374, 45 

State V. Bennett, 24 Ind. 383, 33 

State V. Berdetta, 73 Ind. 185, 

133, 134, 226, 227, 246, 247, 259, 260, 768 
798, 867, 868 
State V. Blend, 121 Ind. 514, 

32, 39, 53, 54, 57. 67, 338, 344, 345 
State V. Board, etc., 80 Ind. 478, 157, 245 
State V. Bogard, 128 Ind. 480, 55 

State V. Boice, etc., 140 Ind. 506, 41 

State V. Bonnell, 119 Ind. 494, 

35, 98, 130, 131 
State V. Brugh, 5 App. 592, 57 

State V. Buxton, 31 Ind. 67, 868 

State V. Casteel, 110 Ind. 174, 213 

State y. Chicago, etc., R. Co., 151 Ind. 

474, 797 

State V. City of Columbus, 63 Ind. 155, 691 
States., Citv of Indianapolis, 69 Ind. 

375, ' 47, 207 

State V. Citv of Kokomo, 108 Ind. 74, 200 
State V. Citv of Michigan Citv, 138 Ind. 

455, " 76, 278, 283, 841 

State V, Citv of New Albany, 127 Ind. 

221 , 247 

State V. City of Terre Haute, 87 Ind. 

212, 118, 164, 908 

State V. City of Terre Haute, 130 Ind. 

434, 39 

State V. Cleveland, etc., R. Co., 137 

Ind. 75, 872 

State V. Craig, 132 Ind. 54, 43, 61, 68, 752 
State V. Currv, 134 Ind. 133, 84, 96, 97 

State V. Davis, 96 Ind. 539, 103 

State V. Deniston, 6 Blackf. 277, 95 

State V. Denny, 118 Ind. 449, 

32, 38, 39, 40, 43, 53, 54, 57, 61, 67, 84 

334, 338, 344, 345, 752 

State V. Drulv, 3 Ind. 431, 103 

State V. Feagans, 148 Ind. 621, 879 

State V. Gallagher, 81 Ind. 558, 45 



TABLE OF CASES. 



xlvii 



\_Iieferences are to Pages.'] 



State V. Gerhardt, 145 iDd. 439, 35, 130 
State V. Gorbv, 122 Ind. 17, 53, 57 

State v. Gramelspacher, 126 Ind. 398, 751 
State y Grammer, 29 Ind. 530, 98 

State V. Gray, 93 Ind. 303, 14, 32 

State V. Grubb, 85 Ind. 213, 14, 32 

State V. Harris, Ind. Sup. Ct., Dec. 16, 

1898, 55 

State i\ Harrison, 113 Ind. 434, 54, 55, 349 
State V. Hauser, 63 Ind. 155, 

62, 84, 98, 104, 105, 107, 109, 139, 169, 691 
State V. liaworth, etc., 122 Ind. 462, 

53, 69, 98, 284 
State V. Hebel, 72 Ind. 361, 876 

State V. Henning, 33 Ind. 189, 877 

State V. Hertsch, 136 Ind. 293, 57, 757 

State V. Hill, 10 Ind. 219, 221 

State V. Hirsch, 125 Ind. 207, 70 

State V. Husband, 26 Ind. 308, 757 

State V. Hyde, 121 Ind. 20, 53 

State V. Hyde, 129 Ind. 296, 34, 67 

State V. Indiana, etc., K. Co., 133 Ind. 

69, 869, 870 

State y. Insurance Co., 115 Ind. 257, 57 
State V. Jackson, 118 Ind. 553, 153, 257 

State V. Johnson, 100 Ind. 489, 45, 105 

State V. Kidd, 74 Ind. 554, 70 

State V. Kirk, 44 Ind. 401, 407, 

26, 37, 44, 67, 77, 107 
State V. Kolsem, 130 Ind. 434, 

34, 39, 40, 53, 54, 60, 61, 67, 344, 751 
State V. Krost, 140 Ind. 41, 41 

State V. Linkhauer, 142 Ind. 94, 38 

State V. Louisville, etc., R. Co., 86 Ind. 

114, 246, 247 

State V. Mainey, 65 Ind. 404, 

767, 768, 797, 806, 827, 868 
State V. Malone, 8 App. 8, 868, 869 

State V. Mason, 108 Ind. 48, 876 

State V. Mathis, 18 App. 608, 129 

State V. Mathis, 21 Ind. 277, 226 

State V. Mavor, etc., 28 Ind. 248, 72 

State V. Mavor, etc., 108 Ind. 74, 

171, 197, 199 
State V. McDonald, 106 Ind. 223, 877 

State V. Meyer, 60 Ind. 288, 68, 754, 910 
State V. Miles, 138 Ind. 692, 799, 800 

State V. Missouri Pacific R. Co., 33 Kan. 

176, 266, 385, 476 

State V. Moriarity, 74 Ind. 103, 226 

State V. Mount, 151 Ind. 679, 53 

State V. Needham, 32 Ind. 325, 41, 47 

State V. Noble, 118 Ind. 350, 38, 44 

State V. Peelle, 121 Ind. 495, 53 

State V. Porter, 7 Ind. 204, 105 

State V. Porter, 134 Ind. 63, 828 

State V. Prather, 44 Ind. 287, 98 

State V. Record, 56 Ind. 107, 876 

State V. Reitz, 62 Ind. 159, 41, 42 

State V. Robbins, 124 Ind. 312, 127 

State V. Robv, 142 Ind. 168, 188, 26 

State V. Schoonover, 135 Ind. 526, 26, 31 
State V. Shields, 56 Ind. 521, 916 

State V Sohn, 97 Ind. 101, 69, 92 



State V. Soudriette, 105 Ind. 306, 27 

State y. Stephenson, 83 Ind. 246, 877 

State V, Stevens, 103 Ind. 55, 104 

State V. Stewart, 66 Ind. 555, 868 

State y. Swindell, etc., 146 Ind. 527, 

106, 108, 120, 121 
State V. Town of Tipton, 109 Ind. 73, 

61, 62, 63, 64 
State V. Tucker, 46 Ind. 355, 41 

State V. Walford, 11 App. 392, 103 

State V. Walls, 54 Ind. 561, 877 

State V. Walters, 64 Ind. 226, 76 

State V. Wenzel, 77 Ind. 428, 69 

State V. Wheadon, 39 Ind. 520, 48 

State y. Wheeling, etc., Co., 18 How. 

421, 6 

State V. White, 88 Ind. 587, 103 

State V. Wilson, 142 Ind. 102, 68, 98 

State V. Winter, 148 Ind. 177, 64, 69, 72 
State V. Wolever, 127 Ind. 306, 76, 77 

State Bank v. Brackenridge, 7 Blackf. 

395, 209 

State Bank, etc., v. City of Madison, 3 

Ind. 43, 209 

State Board, etc., v. Holliday, 150 Ind. 

216, 45, 208 

Steamship Co. v. Louisiana Board, etc., 

118 U.S. 455, 16 

Steel V. Empson, 142 Ind. 397, 224, 225 

Steffy V. Town of Monroe City, 135 Ind. 

466, 31, 122, 129, 132, 766, 769 

Stein V. Bienville, etc., Co., 34 Fed. 

Rep. 145, 12 

Stein V. City of Lafayette, 6 App. 414, 

88, 90, 154, 156, 162, 254, 256, 257, 258 
Steinaur v. City of Tell City, 146 Ind. 

490, 217,220,222,811,812 

Steinback v. State, 38 Ind. 483, 55 

Steinke v. Bentlev, 6 App. 663, 162 

Stephenson v. Bobdy, 139 Ind. 60, 10, 33 
Stephenson v. Monmouth, etc., Co., 84 

Fed. Rep. 114, 67 

Stephenson v. Town of Salem, 14 App. 

386, 711, 712 

Stevens v. Anderson, etc., 145 Ind. 304, 

76, 457 
Stevens v. City of Logansport, 76 Ind. 

498, 231 

Stevens v. Williams, 70 Ind. 536, 

688, 784, 786 
Stewart v. City of Jeffersonville, 41 Ind. 

153, 292 

Stiffler V. Board, etc., 1 App. 368, 67, 754 
Stilzv. City of Indianapolis, 55 Ind. 515, 

17, 28, 208, 210, 318, 320, 321, 323, 324 
Stilz V. City of Indianapolis, 81 Ind. 

582, 207, 208, 209, 210, 687 

Stone V. Mississippi, 101 U. S. 814, 12 

Stowers v. Citizens', etc., R. Co., 21 

App. 434. 273 

Strahn r. Hamilton, 38 Ind. 57, 131 

Strickler v. Midland R. Co., 125 Ind. 

412, 264 

Strieb v. Cox, 111 Ind. 299, 52, 253 



TABLE OF CASES, 



Stringer v. Frost, 116 Ind. 477, 245 

Strong V. State, 75 Ind. 440, 98 

Strong V. State, 1 Blackf. 193, 33 

Stropes V. State, 120 Ind. 562, 876 

Strosser v. Citv of Ft. Wayne, 100 Ind. 
443, 61, 62, 212, 229,^317, 318, 319, 320 
321, 751, 752, 762 
Stoutenburgh V. Hennick, 129 U. S. 141, 

1. 2, 137 
Stultz V. State, 65 Ind. 492, 

60, 62, 69, 212, 319, 320, 751 
Sturm V. Potter, 41 Ind. 181, 95 

Summers v. Board, etc., 103 Ind. 262, 

120, 137 
Summers v. State, 51 Ind. 201, 221 

Sutliff V. Commissioners, 147 U. S. 230, 52 
Swain y. Fulmer, 135 Ind. 8, 

20, 25, 29, 429, 711, 720 
Sweet V. City of Wabash, 41 Ind. 7, 

31, 61, 129, 131 

Swindell v. State, 143 Ind. 153, 64, 68 

72, 77, 106, 108, 109, 120, 121 



lEeferences are to Fages.'\ 

Terre Haute, etc., R. Co. -y. Yoant, 21 

App. 486, 269, 

Terry v. Anderson, 95 U. S. 628, 
Test r. Larsb. 76 Ind. 453, 
The Clinton Bridge, 10 Wall. 454, 
The Daniel Ball, 10 Wall. 557, 
The Gas Light, etc., Co. v. New xAl- 

bany, 139 Ind. 660, 
The Montello, 11 Wall. 411, 
Thistlewaite v. State, 149 Ind. 319, 

122, 228, 738, 
Thomas v. Town of Butler, 139 Ind. 

245, 210 , 

Thomasson v. State, 15 Ind. 449, 
Thompson v. Citizens', etc., R. Co., 

Ind. Sup. Ct., Apr. 20, 1899, 
Thompson v. City of Peru, 29 Ind. 305, 

31, 48, 171, 
Thompson-Houston Electric Co. ?•. City 

of Newton, 42 Fed. Rep. 723, 736, 
Toledo, etc., R. Co. v. Brannagan, etc., 

75 Ind. 490, 
Toledo, etc., R. Co. v City of Lafayette, 

22 Ind. 262, ' 207, 210, 

Toledo, etc., R. Co. v. Cupp, 9 App. 



Taber v. Ferguson, 109 Ind. 227, 

91, 254, 255, 275, 276, 277, 278, 284, 285 
291, 292, 293, 721, 789, 792, 799 
Taber v. Grafmiller, 109 Ind. 206, 

89, 91, 210, 226, 255, 275, 276, 280, 282, 687 
Taggart v. Claypool, 145 Ind. 590, 

17, 18, 28,33, 57, 318. 320, 391 
Taggart, etc., v. State, 142 Ind. 688, 42 

Talbottv. Grace, 30 Ind. 389, 221 

Tate V. Ohio R. Co., 7 Ind. 479, 

25, 229, 259, 260, 262, 263 
Tax-Payers v. Plattsburg, 50 N. Y. 

Supp. 356, 400 

Taylor v. Board, etc., 110 Ind. 462, 28 

Taylor v. City of Ft. Wayne, 47 Ind. 

274, " 318, 749, 810, 815 

Taylor v. Ypsilanti, 105 IJ. S. 60, 10, 115 
Telegraph Co. v. Attorney-General, 125 

U. S. 530, 5 

Telegraph Co. v. Texas, 105 JJ. S. 460, 4 
Terre Haute, etc., R. Co. r. Bisseil, 108 

Ind. 113, 26, 226, 259, 265, 798 

Terre Haute, etc., R. Co. v. Brunker, 

128 Ind. 542, 869, 871 

Terre Haute, etc., R. Co. v. City of 

South Bend, 146 Ind. 239, 

81, 122, 782, 835 
Terre Haute, etc., R. Co. v. Clem, 123 

Ind. 15, 238,267,830 

Terre Haute, etc., R. Co. v. Lauer, 21 

App. 466, 272 

Terre Haute, etc., R. Co, v. Nelson, 130 

Ind. 258, 278 

Terre Haute, etc., R. Co. v. Rodel, 89 

Ind. 128, 223, 263, 264 

Ten-e Haute, etc., R. Co. v. Scott, 74 

Ind. 29, 260, 262 

Terre Haute, etc., R. Co. v. Teel, 20 

Ind. 131, 236 



244, 
Toledo, etc.. 

578, 
Toledo, etc., 

337, 
Tomlinson r 

Ind. 142, 



R.Co.v. Milligan, 2 App. 
R. Co. V. Stevens, 63 Ind. 



City of Indianapolis, 144 

128, 

Torbert v. Lynch, 67 Ind. 474, 

Tousey v. Bell, 23 Ind. 423, 

Town of Albion r. Hetrick, 90 Ind. 545, 

62, 240, 253, 751, 797, 803, 

Town of Andrews v. Sellers, 11 App. 

301, 761,784,785, 

Town of Auburn v. Eldridge, 77 Ind. 

126, 789, 

Town of Boswell r.Waklev, 149 Ind. 64, 

157," 242, 248, 803, 

Town of Brazil v. Kress, 55 Ind. 14, 

62, 131, 752, 

Town of Brookville v. Gagle, 73 Ind. 

117, 762, 

Town of Centerville v. Woods, 57 Ind. 



192, 



252, 752, 767, 



804, 



Town of Cicero v. Chfford, 53 Ind. 191 

173, 
Town of Cicero r. Sanders, 62 Ind. 208, 

208, 

Town of Cicero v. Williamson, 91 Ind. 

541, 124, 324, 749, 

Town of Coloma v. Eaves, 92 V. S. 484, 

172, 

Town of Columbia City v. Anthes, 84 

Ind. 31, 131, 763, 

Towm of Covington v. Nelson, 35 Ind. 

532, 791, 

Town of Edinburg v. Hackney, 54 Ind. 

83 131 

Town of Elkhart v. Ritter, 66 Ind. 136,' 
162, 231, 232, 233, 235, 767, 797, 801, 



273 
14 

808 
6 
6 

140 

7 

740 

687 
31 

151 

197 

737 

803 

786 

267 

238 

76 

407 

83 
207 

805 

786 

790 

806 

767 

781 

805 

779 

784 

818 

173 

767 

792 

767 

804 



TABLE OF CASES. 



xlix 



[Erfercnccs are to Pages.'] 
etc., Co., 



Town of El wood v. Citizens 

114 Ind. 332, 120 

Town of Fowler v. F. C. Austin Mfg. 

Co., 5 App. 489, 735, 776, 777, 797 

Town of Fowler v. Linquist, 138 Ind. 

566, 218, 219, 240, 802, 812, 813 

Town of Freedom r. Norris, 128 Ind. 

377, 230, 813, 814 

Town of Gosport v. Evans, 112 Ind. 133, 

232, 240, 797, 798, 803 
Town of Hardinsburg v. Cravens, 148 

Ind. 1, 303 

Town of Indianapolis v. Fairchild, 1 

Ind. 315, 781 

Town of Kentland v. Hagen, 17 App. 1, 

767, 797 
Town of Knightstown v. Musgrove, 116 

Ind. 121, ^ 236, 797, 804 

Town of Ladoga v. Linn, 9 App. 15, 260 
Town of Laurel v. Blue, 1 App. 128, 

96, 127, 760 
Town of Ligonier r. Ackerman, 46 Ind. 

552, 131, 767 

Town of Logansport v. Seybold, 59 Ind. 

225, 784 

Town of Marion v. Skillman, 127 Ind. 
130, 

218, 219, 221, 253, 258, 275, 282, 285, 296 
788, 789, 793, 797, 798, 799, 811, 812, 813 
Town of Martinsville v. Frieze, 33 Ind. 

507, 762, 766, 781 

Town of Martinsville v. Shirle3^ 84 

Ind. 546, 255, 799 

Town of Monticello v. Fox, 3 App. 481, 

120, 156, 160, 161, 258, 767, 820, 824 
Town of Monticello v. Kennard, 7 App. 

135, 231, 235, 237, 797, 800, 801 

Town of Nappaneeu. Euckman, 7 App. 

361, 235, 236, 797, 801, 804 

Town of Noblesville v. McFarland, 57 

Ind. 335, 917 

Town of North Manchester v. Oustal, 

132 Ind. 8, 82 

Town of Pana v. Bowler, 107 U. S. 529, 172 
Town of Petersburg -y. Petersburg, etc., 

Co., 16 App. 151, 738, 771 

Town of Poseyville v. Lewis, 126 Ind. 

80, ^ 240 

Town of Princeton v. Geiske, 93 Ind. 

102, 89, 255, 799, 820 

Town of Princeton v. Vierling, 40 Ind. 

340, 766 

Town of Rensselaer v. Leopold, 106 

Ind. 29, 259, 798, 799, 807, 808 

Town of Rosedale v. Ferguson, 3 App. 

596, 89, 226, 244, 768, 797, 800 

Town of Rushville v. Adams, 107 Ind. 

475. 134, 245, 802 

Town of Rushville v. Poe, 85 Ind. 83, 

237, 797, 800 
Town of Salem v. GoUer, 76 Ind. 291, 

242, 797 
Town of Salem v. Henderson, 13 App. 
563, 718 

CiT. AND To. — iv 



Town of Salem v. McClintock, 16 App. 

656, 696 

Town of Salem v. Walker, 16 App. 687, 

230, 239, 240, 797, 803 
Town of Spencer v. Cline, 28 Ind. 51 , 782 
Town of Spiceland v. Alier, 98 Ind. 467, 

233, 234, 235, 237, 243, 797, 800, 801 
Town of Sullivan v. Cluggage, 21 

App. 667, 737 

Town of Sullivan v. McCammou, 51 

Ind. 264, 131, 767 

Town of Sullivan v. Phillips, 110 Ind. 

320, 160, 253, 254 

Town of Thornton v. Fugate, 21 App. 

537, 763 

Town of Tipton v. Jones, 77 Ind. 307, 

754, 793, 795 
Town of Whiting v. Doob, Ind. Sup. 

Ct., Feb. 2, 1899, 867, 868 

Town of Williamsport v. Kent, 14 Ind. 

306, 783 

Town of Williamsport v. Lisk, 21 

App. 414, 797, 804 

Town of Williamsport v. Smith, 2 App. 

360, 806 

Town of Winamac v. Huddleston, 132 

Ind. 217, 52, 138, 778 

Town of Woodruff Place v. Raschig, 

147 Ind. 517, 218, 710, 714, 715, 810, 811 
Town of Worthington v. Morgan, 17 

App. 603, 797 

Townsend v. Cleveland, etc., Co., 18 

App. 568, 119 

Townsend v. State, 147 Ind. 624, 882 

Trainer v. AVolfe, 140 Pa. St. 279, 400 

Transportation Co.-u. Chicago, 99 U. S. 

635, 30 

Transportation Co. v. Parkersburg, 107 

V. S. 691, 7, 8 

Transportation Co. v. Wheeling, 99 

U. S. 273, 7 

Travelers' Ins. Co. v. Kent, 151 Ind. 

349, 47 

Trout V. City of Elkhart, 12 App. 343, 

230, 248, 250, 251 
Trustees, etc., v. Elhs, 38 Ind. 3, 47, 207 
Trustees, etc., v. Johnson, 53 Ind. 273, 118 
Trustees, etc., v. Manck, 35 Ind. 51, 324 
Trustees, etc., v. Rausch, 122 Ind. 167, 

292 295 
Tucker v. Conrad, 103 Ind. 349, 

217, 220, 221, 222, 225, 806, 812, 827 
Tucker v. Sellers, 130 Ind. 514, 198, 709 
Tufts V. State, 119 Ind. 232, 253 

Tuley V. Citv of Logansport, 53 Ind. 

508, 83, 97 

Turner v. Buchanan, 82 Ind. 147, 

236, 245, 803 
Turner v. City of Indianapolis, 96 Ind. 
51, 92, 134, 230, 233, 234, 235 

238, 246, 800, 801 
Turner v. AVilson, 49 Ind. 581, 31 

Turnpike Co. v. Jackson, S6 Ind. Ill, 240 
Turpin v. Board, etc., 7 Ind. 172, 28 



tablp: of cases. 



Tvner v. People's Gas Co., 131 Ind 
"408, 

u 



128 



62 



Union School Tp. v. First Nat. Bank, 
102 Ind. 464, 117, 400, 

United States v. Cruiksiiank, 92 U, S. 
542, 8, 15, 29 

United States v. Memphis, 97 U. S. 284, 19 

Utica Tp, V. Miller, 62 Ind. 230, 917 



V 



862 



Valparaiso City Water Co. v. Diekover, 

17 App. 233, 
Vance v. City of Franklin, 4 App. 515, 803 
Vandercook"^. Williams, 106 Ind. 345, 

44, 100 
Van Hostrup v. Madison City, 1 Wall. 

291, 172 

Van Sickle v. Belknap, 129 Ind. 561, 

91, 92, 279, 280, 282, 283, 288, 721, 722 
Vaughn v. Stuzaker, 16 Ind. 338, 218, 814 
Vaughtman v. Town of Waterloo, 14 

App. 649, 61, 96, 760, 761 

Veazie v. Moor, 14 How. 568, 7 

Veneman v. Jones, 118 Ind. 41, 



\_Eeferences are to Pages.} 

Walker v. Peelle, etc., 18 Ind. 264, 34, 67 
Walker v. Sauvinet, 92 U. S. 90, 15, 23 

Walla Walla City v. Walla Walla 

Water Co., 172 U. S. 1, 10, 50 

Walling V. Michigan, 116 U. S. 446, 16 

Walsh, etc., r. State, 142 Ind. 357, 41 

Walston i\ Nevin, 128 U. S. 578, 19 

Walter v. Town of Columbia City, 61 

Ind. 24, 129; 752, 766 

Waltman v. Rund, 109 Ind. 366, 

221, 260, 813 
Yv^ampler v. State, 148 Ind. 557, 68, 754 
AVard v. Maryland, 12 Wall. 418, 2 

Warner v. Citv of ISiew Orleans, 172 

U. S. 648, ' 715 

Warner v. City of New Orleans, 87 

Fed. Rep. 829, 207, 387, 416 

AYarner v. Curran, 75 Ind. 309, 47, 207 

Warren i\ Britton, 84 Ind. 14, 57 

Warren v. Citv of Evansville, 106 Ind. 

104, ' 34, 41, 56, 60, 462 

Washington Ice Co. v. Lav, 103 Ind. 

48, ' 301 

Wasson v. First National Bank, 107 

Ind. 206, 684 

Water Works Co. v. Burkhart, 41 Ind. 

364, 28, 859 

Water Works Co. v. Rivers, 115 U. S. 



'74, 



Vess V. State, 93 Ind. 211, 95 

Vickery v. Chase, 50 Ind. 462, 41 

Vinson v. Town of Monticello, 118 Ind. 

103, 129, 132, 762, 766, 781 

Virginia, Ex parte, 100 U. S. 339, 15, 20 
Virginia v. Rives, 100 U. S. 313, 15 

Vogel V. Brown Tp., 112 Ind. 299, 61, 762 
Vogel V. State, 107 Ind. 374, 38, 45 

Von Hoffman v. Citv of Quincv, 4 Wall 



94, 128, 147 ! ^vatkins v. State, 68 Ind. 427, 



535, 



9, 10 



w 



Wabash R. Co. r. Defiance, 167 U. S. 

88, 11, 266, 385, 476 

Wabash, etc., R. Co. v. Illinois, 118 

U. S. 557, ], 4 

Wabash, etc., R. Co. r. Lash, 103 Ind. 

80, 76, 77, 79 

Wabash, etc., R. Co. v.. Tretts, 96 Ind. 

450, 267 

Wabash, etc., R. Co. v. Williamson, 

3 App. 190, 267 

Wagner v. Town of Garrett, 118 Ind. 

114, 79,121,132,762,766,781 

Waite V. City of Santa Cruz, 89 Fed. 

Rep. 619, 40, 173 

Waldo v. Wallace, 12 Ind. 569, 

26, 37, 39, 44, 45, 67, 76, 77, 111, 205, 866 
Walker v. City of Evansville, 33 Ind. 

393 114 

Walker V. Dunham, etc., 17 Ind. 483, 34, 67 
Walker v. Hallock, 32 Ind. 239, 69, 106 
Walker v. Jameson, 140 Ind. 591, 

34, 136, 383, 384, 408, 670 



10 
26 
113 

76, 666 

30, 253 

33 



Wavmire v. Powell, 105 Ind. 328, 
Weakley v. Wolf, 148 Ind. 208, 
Y\^eaver r. Templin, 113 Ind. 298, 
AYebb V. Moore, 25 Ind. 4, 
AYeinstein v. City of Terre Haute, 147 

Ind. 556, ' 247 

AYeisT. Citv of Madison, 75 Ind. 241, 

30, 91, 107, 113, 119, 154, 156 
161, 254, 255, 257, 258, 767 
AYelch V. State, 104 Ind. 347, 86 

Wells V. Supervisors, 102 U. S. 625, 

172, 197 
AA^elsh V. Bo wen, 103 Ind. 252, 121 

AAViSh V. State, 126 Ind. 71, 14, 31 

AYelton v. Missouri, 91 U. S. 275, 3 

AA^erlev v. Huntington, etc., Co., 138 

Ind.' 148, 862 

AYeser v. AA^eltv, 18 App. 664, 94, 341 

AA^est V. Blake,' 4 Blackf . 234, 

218, 226, 407, 810 
AA^estern Paving, etc., Co. v. Citizens' 

R. Co., 128 Ind. 525, 9, 11, 271, 841 

AA'estern U. Tel. Co. v. Alabama, etc.. 

Board, 132 U. S. 472, ' 4 

AYestern U. Tel. Co. v. Attornev-Gen., 

125 U. S. 530, " 6, 211 

AA^estern U. Tel. Co. v. Citv of New- 

York, 38 Fed. Rep. 552, ' 17 

AA^estern U. Tel. Co. v. City Council of 

Charleston, 56 Fed. Rep. 419, 4 

Western U. Tel. Co. v. Henderson, 68 

Fed. Rep. 589, 6, 211 

AA'estern U. Tel. Co, v. Pendleton, 122 

U. S. 347, ], 2, 4 



TABLE OF CASES. 



li 



\_References are to Pages.'] 



V. Pendleton, 95 

1, 2, 4 
V. Taggart, 163 

e 

V. Taggart, 141 

6, 211 



Western U. Tel. Co. 

Ind. 12, 
Western U. Tel. Co 

U. S. 1, 
Western IT. Tel. Co 

Ind. 281, 
Western U. Tel. Co. v. Texas, 105 U. S.' 

460, 4 

Westfall V. Hunt, 8 Ind. 174, 282, 814 

Westfield, etc., Co. r. Mendenhall, 142 

Ind. 538, 227, 737, 740 

Wheeler v. Citv of Plymouth, 116 Ind. 

158, 107, 120, 126, 236, 237, 767 

Wheeler v. Jackson, 137 U. S. 245, 14 

White V, Chicago, etc., R. Co., 122 Ind. 

317, 226, 263 

Whitney v. Citv of Madison, 23 Ind. 

331, ' 208, 209, 685 

Whitson V. Citv of Franklin, 34 Ind. 

392, 79, 150 

Wickwire v. City of Elkhart, 144 Ind. 

305, 709 

Wickwire v. Town of Angola, 4 App. 

253, 261, 236, 797, 802, 805 

Wiggins Ferry Co. v. E. St. Louis, 107 

U. S. 365, 7, 8 

Wilcox V. Citv of Tipton, 143 Ind. 241, 

324, 325, 679 
Wilcoxon V. City of Bluffton, Ind. Sup. 

Ct., June 14, 1899, 

52, 172, 691, 778, 908, 913, 915 
Wiles V. Hoss, 114 Ind. 371, 34, 89, 226 
276, 292, 721, 751, 788, 791, 792, 795 
Wiley V. Corp. of Bluffton, 111 Ind. 

152, 41, 48, 49, 56, 60 

Wilev V. Owens, 39 Ind. 429, 

31, 47, 129, 130, 131 
Wilkins v. State, 113 Ind. 514, 

48, 49, 57, 751 
Wilkinson v. Citv of Peru, 61 Ind. 1, 

197, 198, 199 
Willard v. Albertson, App. Ct. (No. 

2,785), May 24, 1899, 61. 253, 254, 711 
Williams v. Albion, 58 Ind. 329, 913 

AVilliams v. Citizens' R. Co., 130 Ind. 

71, 62, 230, 271 

Williams v. Citv of Warsaw, 60 Ind. 

457, 26, 27, 8i, 111, 127, 133, 205, 780, 866 
WilHams v. Connelly, 13 Ind. 502, 70 

Williams v. Eggleston, 116 U. S. Sun. 

Ct. Rep., May 2, 1898, ^ 16 

Williams v. New Jersev, 130 U. S. 189, 13 
Williams v. Stein, 38 Ind. 89, 38 

Williams v. Town of Albion, 58 Ind. 

329, 778 

Williams v. Wiley, 16 Ind. 362, 217, 219 
Williamson v. Yiiigling, 93 Ind. 42, 128 
Wilson V. Poole, 33 Ind. 443, 124, 294 

Wilson V. Town of Monticello, 85 Ind. 

^J?' 778 
Wilson V. Trafalgar, etc., Co., 93 Ind. 

, 287, 803 

Wiltze V. Holt, 95 Ind. 469, 94 



Winchester, etc., Co. v. Veal, 145 Ind. 

506, 105, 442, 759, 875 

Windfall, etc., Co. v. Emery, 142 Ind. 

456, 322, 324, 679, 819 

Windman v. City of Vincennes,58 Ind. 

480, 212, 319, 321, 324 

Winfield Township v. Wise, 73 Ind. 71, 828 
Wingatev. Harrison Township, 59 Ind. 

520, 879, 917 

Wisconsin R. Co. v. Price County, 133 

U. S. 496, 208 

Wise V. Eastham, 30 Ind. 133, 

86, 100, 761, 784 
Withers v. Buckley, 20 How. 84, 15 

Wolfe V. Town of Sullivan, 133 Ind. 

331, 218, 222, 260, 811 

Wolff V. New Orleans, 103 U. S. 358, 9 

Wood V. Board, etc., 125 Ind. 270, 67, 754 
Wood V. Mansell, 3 Blackf . 124, 810 

Wood V. Mears, 12 Ind. 515, 

134, 143, 226, 236, 248, 867 
Wood V. State, 130 Ind. 364, 37 

Woodfill V. Town of Greensburg, 18 Ind. 

203, 322, 818 

Woodruff V. Bo wen, 136 Ind. 431, 142, 143 
Woods V. McCay, 144 Ind. 316, 40 

Woolverton v. Town of Albany, Ind. 

Sup. Ct., Jan. 5, 1899, 323, 681, 749 

Worley v. Harris, 82 Ind. 493, 

62, 210, 752, 783 
Worley v. Town of Cicero, 110 Ind. 

208, 212, 688, 784, 786 

Wren v. City of Indianapolis, 96 Ind. 

206, 91, 107, 275, 284, 288 

Wright V. Defrees, 8 Ind. 298, 38 

Wright V. Stilz, 27 Ind. 338, 208, 685 

AVright V. Stockman, 59 Ind. 65, 908, 917 
Wurts V. Hoagland, 114 U. S. 606, 19 



Yeakel v. City of Lafayette, 48 Ind. 

116, 275, 277, 285, 291 

Yick Wo V. Hopkins, 118 U. S. 356, 

16, 20, 32, 123 
Yonkey v. State, 27 Ind. 236, 37, 43 

Young V. Board, etc., 137 Ind. 323, 40, 42 
Young V. Citizens', etc., R. Co., 148 

Ind. 54, 270 

Young V. Clarendon Tp. 132 U. S. 340, 197 
Young y. District of Columbia, 3 Mc- 

Arthur 137, 232 



Zeller ■?;. Citv of Crawfordsville, 90 Ind. 

262, ^ 26, 129, 205, 780, 866 

Zimmerman v. State, 4 App. 583, 

160, 220, 246, 261, 262 
Zorger v. Citv of Greensburg, 60 Ind. 

1, 77, 80, 81, 121, 127 



CITIES AND TOWNS, INDIANA. 



CONSTITUTION OF THE UNITED STATES. 

1787. 



ART. ART. 

1. The Congress. 4. Citizens — Privileges and Immunities. 

ARTICLES IN AMENDMENT OF THE CONSTITUTION. 

14. Citizens — Privileges and Immunities. 

ARTICLE 1.— THE CONGRESS. 

sec. sec. 

1. Powers of congress. 2. Restrictions upon states. 

1. Powers of congress. — 8. The congress shall have power * * * 
to regulate commerce with foreign nations, and among the several 
states, and with Indian tribes; * * * and, to make all laws which 
shall be necessary and proper for carrying into execution the forego- 
ing powers, and all other powers vested by this constitution in the 
government of the United States, or in any department or officer 
thereof. R. S. 1894, §8. 

Power to reg'ulate commerce. — States can not embarrass commercial communica- 
tion, abridge the freedom of commerce, discriminate in favor of the products of one 
state, lay burdens upon instruments of commerce, or exact licenses from persons, 
natural or artificial, engaged in interstate commerce, and this is so whether congress 
has or has not legislated upon the subject. Western U. Tel. Co. v. Pendleton, 95 Ind. 
12; Western U. Tel. Co. v. Pendleton, 122 U. S. 347; Western U. Tel. Co. v. Alabama 
State Board, 132 U. S. 472; City of Indianapolis v. Bieler, 138 Ind. 30; Crutcher v. Ken- 
tucky, 141 U. S. 47; Wabash, etc., Ry. Co. v. Illinois, 118 U. S. 557; Brimmer v. Reb- 
man, 138 U. S. 78; McCall v. California, 136 U. S. 104; Stoutenburgh v. Hennick. 129 
IT. S. 141; Asher v. Texas, 128 IT. S. 129; Robbins v. Shelby County Taxing District, 
120 U. S. 489; In re Rahrer, 140 U. S. 545; Leisy v. Hardin, 135 V. S. 100; Minnesota 
V. Barber, 136 U. S. 313 ; Scott v. Donald, 165 U. S. 58 ; 4 Elliott Railroads, § 1664, et seq. 

Congress possesses exclusive authority over interstate commerce, but may, bv appro- 

(1) 



§ 1 CONSTITUTION OF THE UNITED STATES. 2 

priate legislation, subject any article of interstate commerce to the police regulations of 
any state. City of Indianapolis v. Bieler, 138 Ind. 30; In re Eahrer, 140 U. S. 545; 
Commonwealth v. Calhane, 154 Mass. 115; Scott v. Donald, 165 V. S. 58. 

Municipal ordinances. — Municipal ordinances and by-laws which assume to regulate 
or lay burdens upon interstate commerce are void. 1 Beach Pub. Corp., § 506 and cases. 

Police power and reg-ulations.— The state is not inhibited from enacting pohce regu- 
lations which operate upon instrumentalities or articles of commerce, provided no dis- 
criminations are made against classes of citizens, and no restrictions are placed upon com- 
mercial intercourse. Congress can not exercise police powers for the protection of the 
inhabitants of a state ; this is a domestic matter, to be governed and regulated by state 
laws. Brechbill v. Eandall, 102 Ind. 528; Western U. Tel. Co. v. Pendleton, 95 Ind. 
12; AVestern U. Tel. Co. v. Pendleton, 122 U. s. 347; New York, etc., R. Co. v. New 
York, 165 U. S. 628; 2 Beach Pub. Corp., § 1014; 2 Elhott Railroads, § 667 and 
cases. 

Police power deleg'ated to cities.— The state may delegate certain of its police pow- 
ers to cities and towns and many of the powers exercised by municipalities are of this 
character. The police power must be exercised in subordination to both the state and 
federal constitutions. 1 Dillon Munic. Corp., 4th ed., §§ 141, 142 and cases; City of 
Crawfordsville v. Braden, 130 Ind.- 149. 

Where a subject is within the police power of the state, the question as to what reg- 
ulations are proper and needful is one for legislative consideration and decision. Jamie- 
son V. Indiana, etc., Co., 128 Ind. 555 ; New York, etc., R. Co. v. New York, 165 U. S. 
628. 

Licenses. — In the exercise of police power, municipal corporations may, when 
empowered by the state, require a license of peddlers, hackmen, draymen, omnibus 
drivers, retail liquor dealers, showmen, green grocers, billiard saloons, pawn brokers 
and many other occupations. Shuman v. City of Ft. AYayne, 127 Ind. 109. 

Interstate commerce— License fee— Peddler — Traveling* agent — Sale by sample. — 
An ordinance which prohibits any traveling merchant, or peddler, from selling, or 
offering to sell, any merchandise without having obtained a license, can not be enforced 
against one who makes negotiations for the sale of property situated and owned in 
another state. An ordinance requiring a license fee from agents representing citizens 
of another state, who offer goods not in this state for sale by sample, is void, because it 
assumes to establish a regulation affecting commerce between the states. IMcLaughlin 
v. City of South Bend, 126 Ind. 471, 472 ; Martin v. Town of Rosedale, 130 Ind. 109 ; 
McCall V. California, 136 U. S. 104; Stoutenburghv. Hennick, 129 U. S. 141; Robbins v. 
Shelby County Taxing District, 120 U. o. 489; Asher v. Texas, 128 U. S. 129; Brennan 
V. Titusville, 153 U. S. 289; Leloup v. Port of Mobile, 127 U. S. 640; In re Nichols, 48 
Fed. Rep. 164; Corson v. Maryland, 120 U. S. 502; Ward v. Maryland, 12 Wall. 418. 

An ordinance of a town of this state requiring all traveling peddlei-s of goods to take 
out license is not void on the assumption that it applies only to non-residents of such 
town, for it equally applies to citizens thereof ; but it is void as to residents of other 
states who are engaged in selling goods located in such other states, even though the 
sale is only by sample, on the ground that it is an interference with interstate com- 
merce. Martin v. Town of Rosedale, 130 Ind. 109. 

A municipal ordinance which imposes a license tax on every merchandise broker 
who maintains a store-room or ware-room or office within the city limits is void, under 
the commerce clause, as to a broker whose sole business is the making of contracts by 
sample for the sale and delivery to citizens of this state of goods, wares and merchan- 
dise, which, at the time of entering into the contracts, are the property of citizens of 
other states, and situated in such other states. In re Rozelle, 57 Fed. Rep. 155. 

A municipal ordinance imposing a tax and other restrictions on the selling of meats 
produced in other states, and nothing of the kind on meats produced in the state in 



3 THE CONGRESS. § 1 

which the ordinance is passed, is void. Georgia Packing Co. v. Mayor, etc., 60 Fed. 
Eep. 774. 

An ordinance of the city of Baltimore providing for the collection of a wharfage charge 
of and from all vessels depositing or transporting goods or articles other than the pro- 
ductions of the state of Maryland, is void. Guy v. Baltimore, 100 XT. S. 434. 

Cities and towns— Ordinance— Hawkers and peddlers.— When the incorporating 
act authorizes it, a city or town may adopt an ordinance restraining any person from 
hawking or peddling within the corporate limits without having a license so to do. 
Such ordinance does not violate the above or any other federal or state constitutional 
provision. City of Huntington v. Cheesbro, 57 Ind. 74; Emert v. Missouri, 156 TJ. S. 
296. 

A city ordinance requiring a hawker or peddler, who is not a resident of the city, and 
M"ho proposes to sell goods, wares or merchandise which are not grown or manufactured 
in the county in which such city is situated, to procure a license and pay a fee therefor, 
before he may lawfully follow his calling in such city, discriminates against the citizens 
and products of other communities, and is unconstitutional and void. Graffty v. City 
of EushviUe, 107 Ind. 502 ; Welton v. Missouri, 91 U. S. 275 ; Guy v. Baltimore, 100 U. S. 
434. See Sears v. Board, etc., 36 Ind. 267. 

An ordinance imposing a license on hawkers and peddlers does not interfere with in- 
tei'^tate commerce in the case of a peddler of chairs imported into the state before his 
employment begins, even though the sale by him be conditional and the title remains in 
the foreign owner. City of South Bend v. Martin, 142 Ind. 31. 

But the right of congress to regulate interstate commerce "is co-extensive with the 
subject on which it acts and can not be stopped at the external boundary of the state, 
but must enter its interior, and must be capable of authorizing the disposition of those 
articles which it introduces, so that they become mingled with the common mass of 
property within the territory entered." Brennan v. Titusville, 153 U. S. 289; Leisy v. 
Hardin, 135 U. S. 100; Gibbons v. Ogden, 9 Wheat. 1; Brown v. Maryland, 12 Wheat. 
419; In re Spain, 47 Fed. Eep. 208. 

Interstate commerce— Intrastate commerce.— The negotiation of sales of goods 
which are in another state for the purpose of introducing them into the state in 
which the negotiation is made is interstate commerce, and can not be restrained or 
'taxed by the state into which they are sought to be so introduced. To tax the sale of 
such gocd.s, or the offer to sell them, before they are brought into the state, is a tax on 
interstate commerce. Goods which have been sent by the owners and manufacturers 
from one state into another, for sale, reaching their final destination and resting place 
before they are sold, or offered for sale, cease to be subjects of interstate commerce and 
become incorporated in the general mass of property in the state to which the}' have 
been so sent, and the selling or offering for sale of such property is not interstate com- 
merce, but internal and domestic commerce. Both the occupation of selling the goods, 
and the goods themselves, in such case, are subject to the taxing power and the police 
power of the state. Emert v. Missouri, 156 U. S. 296; City of South Bend v. Martin, 
142 Ind. 31. 

And an ordinance prohibiting peddling is an unlawful interference with interstate 
commerce as to a salaried soliciting and distributing agent, when such agent solicits 
orders for books and forwards such orders to another salaried agent of such tirm, who 
sends them to said firm, the latter shipping the books upon said orders to the agent 
from whom the orders are received by it, and he in turn repacking and reshipping the 
books to the soliciting and distributing agent for distribution upon said orders. City 
of Huntington v. Mahan, 142 Ind. 695. 

Intoxicating" liquors.— Under the act of congress approved August 8. 1890, intoxi- 
cating liquors transported from one state into another for use, sale or storage in the 
latter state, are subject to its police regulations; and an ordinance of the city of 



§ 1 CONSTITUTION OF THE UNITED STATES. 4 

Indianapolrs licensing b^e^Yeries, distilleries and their depots and agencies established 
in the city, with other wholesale dealers in malt liquors, but excepting from its opera- 
tion residents of the city doing a wholesale business in bottled beer, is valid against 
residents and non-residents alike, but the exception sought to be made is void for dis- 
crimination. City of Indianapolis v. Bieler, 138 Ind. 30. 

Orig'inal packag'es. — States can not prohibit the importation from another state of 
any article of merchandise and the sale thereof in the original packages, unless by 
authority of congress ; and any burden placed upon such property, or the sale thereof 
by the owner, or his agent, is in violation of the power in congress to regulate inter- 
state commerce. Leisy v. Hardin, 135 U. s. 100; Lyng v. Michigan, 135 U. S. 161. 

So long as congress remains silent as to any branch or article of interstate commerce 
such silence is an indication of its will that such branch or article of commerce shall 
remain unrestricted ; yet congress may, by appropriate legislation, subject any article 
of interstate commerce tc the police regulations of any state. In re Eahrer, 140 U. S. 
545; Cratcher v. Kentucky, 141 U. S. 47; Wabash, etc., Ry. Co. v. Illinois, 118 U. S. 
557; Brimmer v. Eebman, 138 U. S. 78; City of Indianapolis v. Bieler, 138 Ind. 30. 

An ordinance which provides that it shall be unlawful to sell liquors at wholesale or 
retail in connection with drugs, or in drug stores, does not interfere with interstate 
commerce. Jacobs Pharmacy Co. v. City of Atlanta, 89 Fed. Rep. 244. 

TelegTaph companies— Control by congress. — The telegraph is an instrument of 
commerce ; intercourse by telegraph is commercial intercourse, and when it e-'tends be- 
yond the state is interstate and subject to the control of congress. Western U. Tel. Co. 
V. Pendleton, 95 Ind. 12; Pensacola Tel. Co. v. Western U. Tel. Co., 96 U. S. 1; Tele- 
graph Co. V. Texas, 105 U. S. 460; Western U. Tel. Co. v. Pendleton, 122 U. S. 347; 
Ratterman v. Western U. Tel. Co., 127 U. S. 411 ; Leloup v. Port of Mobile, 127 U. S. 640. 

TelegTaph companies — License tax. — A city, when authorized by its charter, may 
impose a license tax by ordinance upon a telegraph company which has accepted the 
provisions of the act of congress approved July 24, 1866, for business done exclusively 
within such city, but not including any business done to or from points without the 
state, and not including any business done for the government of the United States, its 
officers or agents. An ordinance imposing a license tax of §500 in such case is an exer- 
cise of police power and is not in conflict with the federal constitution. Postal Tel. 
Cable Co. v. Charleston, 153 U. S. 692; Western U. Tel. Co. v. City Council of Charles- 
ton, 56 Fed. Rep. 419. 

License tax — City ordinance. — A municipal ordinance requiring a telegraph com- 
pany, which is engaged in transmitting messages to all parts of the United States, and 
which has accepted the act of congress of July 24, 1866, to pay a license tax, is void. 
Leloup V. Port of Mobile, 127 U. S. 640. See Osborne v. Mobile, 16 Wall. 479. 

Teleg-raph companies— Interstate and federal business.— The business done by tel- 
egraph companies, which have accepted the provisions of the act of July 24, 1866, be- 
tween points without the state and the city, and all business done for the United States 
government, is protected from taxation by the interstate commerce clause. Western U. 
Tel. Co. V. Texas, 105 U. S. 460; Western U. Tel. Co. v. Alabama State Board of Assess- 
ment, 132 U. S. 472; Leloup v. Port of Mobile, 127 U. S. 640. 

Teleg'raph companies — Occupation of streets — Rental. — A city ordinance requiring 
telegraph and telephone companies, which are not taxed on their gross income for city 
purposes, to pay for the privilege of using the streets, alleys and public places, to the 
city, the sum of five dollars per annum for each telegraph or telephone pole erected or 
used by them on the streets, alleys or public places in said city, does not impose a priv- 
ilege or license tax. Such charge is in the nature of rental, and the ordinance is valid. 
St. Louis v. Western U. Tel. Co., 148 U. S. 92; St. Louis v. Western U. Tel. Co., 149 
U. S. 465; Postal Tel. Cable Co. v. Baltimore, 156 U. S. 210. See City of Philadelphia 
v. Western U. Tel. Co., 81 Fed. Rep. 948. 



5 THE CONGRESS. § 1 

Interstate commerce— Ordinances imposing" tax on telegraph poles and wires.— 

Where city enacted two ordinances, one imposing a chai'ge of $1 per annum for each 
telegraph pole maintained in the city of Philadelphia by any telegraph company, and 
the other, in addition to the pole charge, required the annual payment of ^2.50 per 
mile on all wires suspended above ground, the ordinances were unreasonable and void. 
City of Philadelphia v. Western U. Tel. Co., 82 Fed. Rep. 797. 

An ordinance imposing the payment of five times the cost of supervising and con- 
trolling the corporation imposes a tax and is void as applied to a corporation engaged 
in interstate commerce. City of Philadelphia v. Western U. Tel. Co., 40 Fed. Rep. 615. 

It is lawful for a state to impose taxes upon property owned and used Avithin it by a 
corporation of another state, even when such corporation is engaged in interstate com- 
merce, and the exaction of a license tax is a valid exercise of power by municipal cor- 
porations, in order to cover expenses to which they may be put in the enforcement of 
their police rules and regulations. City of Philadelphia v. Western U. Tel. Co., 89 
Fed. Rep. 454; Western U. Tel. Co. v. Attorney-General, 125 U. S. 530. 

The amount of the license charges rests with the city councils in the first instance, 
and it is only where such discretion has been manifestly abused that the courts are jus- 
tified in interfering. City of Philadelphia v. Western XJ. Tel. Co., 89 Fed. Rep. 454. 

Teleg'rapli ])oles — License tax. — Cities may impose a reasonable license tax upon 
the poles of telegraph companies maintained within the corporate limits. Whether the 
amount of license tax imposed is reasonable is open to judicial inquiry. City of Phila- 
delphia V. Western U. Tel. Co., 89 Fed. Rep. 454. 

Railroads — Reg"ulation. — A railroad company created by a state is for all purposes 
of local government a domestic corporation, and its railroad within the state is a matter 
of domestic concern. Even w^hen its road connects with railroads in other states, the 
state w^hich created the corporation may make all needful regulations of a police charac- 
ter for the government of the companj^ while operating its road in that jurisdiction. It 
may prescribe the location and the plan of construction of the road, the rate of speed at 
which the trains shall run, and the places at which they shall stop, and may make any 
other reasonable regulations for their management in order to secure the objects of the 
corporation and the safety, good order, convenience and comfort of the passengers and 
of the public. ' Such regulations are not in themselves regulations of interstate com- 
merce ; and it is only w^hen they operate as such in the circumstances of their applica- 
tion that they can be required to give way to the paramount authority of the constitution 
of the United States. Gladson v. Minnesota, 166 U. S. 427. 

License tax — Railroad ag-ency. — An ordinance of a city which requires an agent of a 
railroad company engaged in interstate commerce, whose business it is to solicit passen- 
gers to travel over the railroad w hich he represents, from the state of California into 
and through other states to the city of New York, to pay a license fee for the privilege 
of conducting such business in the city, is a tax upon interstate commerce and is uncon- 
stitutional. McCall V. CaUfornia, 136 U. S. 104; Norfolk, etc., R. Co. v. Pennsylvania, 
136 U. S. 114. 

A railroad which, through its connections and traffic contracts, has become a link in 
a through line of road, over which, as part of the business thereof, freight and passen- 
gers are carried into and out of a state, is engaged in interstate commerce. An office 
maintained by such railroad, in a state other than the one in which it is incorporated, 
because of the necessities of the interstate business of the company, and for no other 
purpose, can not be taxed by the state in which such office is maintained. Norfolk, etc., 
R. Co. V. Pennsylvania, 136 U. S. 114. 

Taxation— Unit rule— Interstate commerce.— The tax law of :\Iarch 6, 1891 (R. S. 
1894, § 8408, et seq.), is not invahd as authorizing the importation of values, by reason 
of considering the road as a unit and taking such value for assessment as the part of the 
road lying within the state bears to the whole road, and such a mode of assessment 



§ 1 CONSTITUTION OF THE UNITED STATES. 6 

does not interfere with interstate commerce. Indianapolis, etc., Ry. Co. v. Backus, 
133 Ind. 609, 612; Evansville, etc., R. Co. v. West, 139 Ind. 254. 
Unit system— Applied to railroads, sleeping' car, express, telephone and telegraph 

companies.— Pittsburgh, etc., Ey. Co. v. Backus, 154 U. S. 421; Cleveland, etc., Ry. 
Co. V. Backus, 154 JJ. S. 439; Pullman Palace Car Co. v. Hayward, 141 V. S. 36; Mass- 
achusetts V. Western V. Tel. Co., 141 U. S. 40; Western U. Tel. Co. v. Attorney-Gen- 
eral, 125 U. S. 530 ; AVesternU. Tel. Co. v. Henderson, 68 Fed. Rep. 589 ; Western U. Tel. 
Co. V. Taggart, 141 Ind. 281 ; State v. Adams, American, United States Express Co., 144 
Ind. 549; Maine v. Grand Trunk R. Co., 142 Ind. 217; Western U. Tel. Co. v. Taggart, 
163 TJ. S. 1 ; Pullman Palace Car Co. v. Pennsylvania, 141 U. S. 18 ; Adams Express Co. 
V. Ohio, 165 U. S. 194. 

The tax law of March 6, 1891 (R. S. 1894, § 8408, et seq.), does not authorize the im- 
portation of values from other states, nor does the method of assessment of rolling 
stock, valued in accordance with the rule of rating the roads as a unit, and taking such 
a jjortion of its value as the length of the road lying within the state bears to the whole 
road, operate to import values upon vv^hich assessments for taxation are made ; nor does 
such method of assessment tax interstate commerce. Cleveland, etc., Ry. Co. v. 
Backus, 133 Ind. 513, 543 ; Pittsburgh, etc., Ry. Co. v. Backus, 133 Ind. 625, 655; Evans- 
ville, etc., R. Co. V. West, 139 Ind. 254; Pittsburgh, etc., Ry. Co. v. Backus, 154 
U. S. 421 ; Cleveland, etc., Ry. Co. v. Backus, 154 U. S. 445. 

Railroad bridge. — The fact that a railroad bridge across a navigable stream is an in- 
strument of interstate commerce does not exempt so much of it as is within either state 
from taxation by such state. Pittsburgh, etc., Co. v. Board of Public Works, 172 U. S. 
32. 

Taxes— Interstate commerce— Teleg-raph company.— The statute of 1893 (R. S. 
1894, § 8478, et seq.) providing for the assessment and valuation of telegraph lines is 
valid, and is not an infringement of interstate commerce. That statute and the statute of 
1891 (R. S. 1894, § 8408, et seq.) are only different parts of one and the same law of 
taxation. Western U. Tel. Co. v. Taggart, 141 Ind. 281; Pittsburgh, etc., Ry. Co. v. 
Backus, 154 U. S. 421, 447. 

A tax upon a carrier upon business done in a state is not a tax upon interstate com- 
merce, although the carrier is engaged in business between the states. Pacific Express 
Co. V. Seibert, 142 U. S. 339. 

The property of corporations engaged in interstate commerce, situated within the 
state, may be taxed the same as other property of individuals or corporations engaged 
in the same line of business. Postal, etc.. Cable Co. v. Adams, 155 U. S. 688. 

Navig'abie waters — Control— Bridg'es, etc.— The power vested in congress to regu- 
late commerce with foreign nations and among the several states includes the control 
of the navigable waters of the United States, so far as may be necessary to insure their 
free navigation, and by " IS avigable waters of the United States," are meant such as 
are navigable in fact, and which by themselves or their connection with other waters 
form a continuous channel for commerce mth foreign countries or among the states. 
Congress may provide for the erection of bridges, or for the removal of the same, over 
navigable waters, and may prescribe their height, location and other matters affecting 
navigation. Miller v. Mayor of New York, 109 U. S. 385; The Daniel Ball, 10 Wall. 
557; Escanaba Co. v. Chicago, 107 U. S. 678; State v. Wheeling and Belmont Bridge 
Co., 18 How. 421; Gilman v. Philadelphia, 3 Wall. 713; Luxton v. North River Bridge 
Co., 153 U. S. 525; Covington, etc.. Bridge Co. v. Kentucky, 154 U. S. 204; Newport 
and Cincinnati Bridge Co. v. United States, 105 U. S. 470; Harman v. Chicago, 147 
U. S. 396 ; The Clinton Bridge, 10 Wall. 454. 

An ordinance of the city of New Orleans "to establish the rate of licenses for profes- 
sions, callings and other business," etc., which assessed and directed to be collected a 
certain sum from '' every member of a firm or company, agency, person or corporation 



7 THE CONGRESS. § 1 

running tow-boats to and from the Gulf of Mexico, or owning and running job-boats 
within the corporate limits" is in conflict with the authority of congress to regulate 
commerce and is void. Moran v. New Orleans, 112 U. S. 69. 

Vessels navigating the Chicago river, licensed by the United States, can not be 
required to pay a license tax by the city of Chicago. Harman v. Chicago, 147 U. S. 396. 

The levying of a tax upon vessels or other water-craft, or the exaction of a license fee 
by the state within which the property subject to the exaction has its situs, is not a 
regulation of commerce within the meaning of the constitution. Wiggins Ferry Co. v. 
East St. Louis, 107 U. S. 365 ; Transportation Co. v. Wheeling, 99 U. S. 273 ; Covington, 
etc., Bridge Co. v. Kentucky, 154 U. S. 204. 

A tax imposed by the city of Wheeling upon certain steamboats used in navigating 
the Ohio between that city and Parkersburg and intermediate places on both sides of 
the river, in the states of West Virginia and Ohio, the principal office of the company 
being in Wheeling, and the vessels starting from that city on their voyages, and when 
not running being laid up there, is valid. Transportation Co. v. Wheeling, 99 U. S. 273. 

A vessel engaged in interstate commerce, temporarily in a port, with a situs at an- 
other port, is not subject to state or municipal taxes while in such temporary port. 
Hays V. Pacific, etc., Co., 17 How. 596. 

Internal and non-navigable waters— Highways, turnpikes, railways, canals, 
etc. — Congress has no right to interfere, concerning strictly internal commerce of the 
state, and while the regulations of the state may affect interstate commerce indirectly, 
their bearing upon it is so remote that it can not be termed in any just sense an inter- 
ference. The states may authorize the construction of highways, turnpikes, railways 
and canals between points in the same state, and regulate tolls for the use of the same ; 
and may authorize the building of bridges over non-navigable streams, and otherwise 
regulate the navigation of the strictly internal waters of the state, such as do not, by 
themselves or by connection with other waters, form a continuous highway over which 
commerce is or may be carried on with other states or foreign countries. Covington, 
et€.. Bridge Co. v. Kentucky, 154 U. S. 204; Railroad v. Maryland, 21 AVall. 456; Veazie 
V. Moor, 14 How. 568; The Montello, 11 Wall. 411; Sands v. Manistee River, etc., Co., 
123 L' . S. 288 ; Elliott Roads and Streets, pp. 27, 28. 

Cases in which states, directly or by deleg-ation to municipalities, may act in the 
absence of action by cong^ress. — In the absence of regulation by congress states may 
enact laws for regulation of pilots ; quarantine and inspection laws and the policing of 
harbors ; the improvement of navigable channels ; the regulation of wharfs, piers and 
docks ; the construction of dams and bridges across the navigable waters of a state, and 
the establishment of ferries. Covington, etc.. Bridge Co. v. Kentucky, 154 U. S. 204, 
211, and cases; Brown v. Houston, 114 U. S. 622, 630; Escanaba Co. v. Chicago, 107 
U. S. 678; Transportation Co. v. Parkersburg, 107 U. S. 691; Ouachita Packet Co. v. 
Aiken, 121 U. S. 444; Packet Company v. Catlettsburg, 105 U. S. 559. 

Jurisdiction of cong'ress, when exclusive. — In the absence of congressional action 
the states may continue to regulate matters of local interest only incidentally affecting 
foreign and interstate commerce, such as pilots, wharves, harbors, roads, bridges, tolls, 
freights, etc., but whenever the matter is national in character or admits of one uniform 
system or plan of regulations, the power of congress is exclusive, and, in such case, non 
action upon the part of congress is equivalent to a declaration that interstate commerce, as 
to such matter, shall remain free and untrammeled. Brown v. Houston, 114 V. S. 622; 
Bowman v. Chicago, etc., Ry. Co., 125 U. S. 465 ; Covington, etc.. Bridge Co. v. Kentucky. 
154 U. S. 204; Mobile County v. Kimball, 102 U. S. 691. 

Harbors— Wharves— Quarantine stations.— The constitution of the United States 
does not prohibit states from improving harbors, bays and rivers which are aids to com- 
merce, nor from collecting toll for the use of improved national waterways ; and states 
may erect wharves, collect fees for the use thereof, and collect fees at quarantine stations. 



§ 2 CONSTITUTION OF THE UNITED STATES. 8 

County of Mobile v. Kimball, 102 U. S. 691; Sands v. Manistee Co., 123 U. S. 288; 
Packett Co. v. Catlettsburg, 105 U. S. 559; Packett Co. v. Keokuk, 95 U. S. 80; Packett 
Co. V. St. Louis, 100 U. S. 423; Morgan's Co. v. Louisiana Board, 118 U. S. 455; Oua- 
chita Co. V. Aiken, 121 U. S. 444; 1 Beach Pub. Corp., § 565. 

Wharfage fees can not be charged to vessels of other states when such fees are not 
charged to local vessels of the state. Guy v. Baltimore, 100 IT. S. 434. 

Bridg'es.— In the absence of action upon the subject by congress, a municipal corpo- 
ration, under authority delegated by the state, may regulate the construction, repair, 
and use, of bridges over navigable waters within the city limits. Escanaba Co. v. Chi- 
cago, 107 IT. S. 678; Cardweil v. American Bridge Co., 113 U. S. 205; Elliott Eoads and 
Streets, p. 27. 

Ferries. — When a state expressly grants to an incorporated city the power " to license, 
tax and regulate ferries," the latter may impose a license tax on the keepers of ferries 
living in the state, although their boats ply between landings lying in two different 
states, and the act by which this exaction is authorized will not be held to be a regula- 
tion of commerce. Wiggins Ferry Co. v. East St. Louis, 107 U. S. 365; Fanning v. 
Gregoire, 16 How. 524; Conway v. Taylor's Ex'rs, 1 Black 603; Covington, etc.. Bridge 
Co. V. Kentucky, 154 U. S. 204. 

Cities and towns situated on navigable waters, under authority conferred by their 
charters, in the absence of action by congress, may, by ordinance, provide for the erec- 
tion of wharves, regulate wharfage in proportion to the tonnage of vessels, and forbid 
vessels landing within the corporate limits, except as places designated as wharves or 
landing places. Packet Co. v. Catlettsburg, 105 U. S. 559. 

Municipal ordinances, regulating rate of wharfage, enacted under authority of a 
statute of the state, in the absence of action upon the subject by congress, are not in 
conflict with the constitution. If the rates fixed are unreasonable, relief must be sought 
under the laws of the state. Ouachita Packet Co. v. Aiken, 121 TJ. S. 444,; Transporta- 
tion Co. V. Parkersburg, 107 V. S. 691. 

2. Restrictions upon states. — 10. No state shall * * * pass 
any bill of attainder, ex post facto law, or law impairing the obliga- 
tion Oi contract; or grant any title of nobility. * * * R. S. 1894, 
§10. 

See post, § 14 and notes. 

Provisions construed. — In order to come within the provision, ''that no state shall 
pass any law impairing the obligation of contracts," not only must the obligation of a 
contract have been impaired, but it must have been impaired by a law of the state. The 
prohibition is aimed at the legislative power of the state, and not at the decisions of 
its courts, or the acts of administrative or executive boards or officers, or the doings of 
corporations or individuals. New Orleans "Water Works Co. v. Louisiana, etc., Co., 125 
U. S. 18. 

Municipal ordinances. — A by-law or ordinance of a municipal corporation, however, 
is a law of the state within the meaning of the constitution, and when it impairs the 
obligation of a contract is void. New Orleans Water AVorks Co. v. Louisiana, etc., Co., 
125 U. S. 18; Murray v. Charleston, 96 V. S. 432; 1 Beach Pub. Corp., § 506. 

An ordinance, when accepted, may become a contract, and in such case the obligation 
of the contract can not be impaired bv a subsequent ordinance. 1 Beach Pub. Corp., 
§ 506. 

Municipal charters not contracts. — INIunicipal corporations are mere instrumentali- 
ties of the state for the more convenient administration of local government. In the 
absence of restrictions in the state constitution, their powers may be enlarged, abridged 
or entirely withdrawn at the pleasure of the legislature. Meriwether v. Garrett, 102 
U. S. 472 ; 1 Dillon Munic. Corp., 4th ed., § 54 ; United States v. Cruikshank, 92 U. S. 542; 



9 THE CONGRESS. § 2 

New Orleans v. New Orleans Water AYorks Co., 142 IT. S. 79; Dartmouth College Case, 
4 Wheat. 518; Mount Pleasant v. Beckwith, 100 U. S. 514; Butchers' Union v. Crescent 
City Co., llir. S. 746. 

But such a corporation, in respect to its private or proprietary rights and interests, 
may be entitled to constitutional protection. New Orleans v. Water Works Co., 142 
r. S. 79. 

Mimicipal contracts— Repeal or amendment of municipal charter— Creation 
of neAV corporation. — The state's plenary power over its municipal corporations to 
change their organization, to modify their method of internal government, or to abolish 
them altogether, is not restricted by contracts entered into by the municipality with its 
creditors or with private parties. An absolute repeal of a municipal charter is there- 
fore effectual, so far as it abolishes the old corporate organization; but when the same 
or substantially the same inhabitants are erected into a new corporation, whether with 
extended or restricted territorial limits, such new corporation is treated as in law the 
successor of the old one, entitled to its property rights and subject to its liabilities. 
Shapleigh v. San Angelo, 167 U. S. 646; Broughton v. Pensacola, 93 U. S. 266; Mount 
Pleasant v. Beckwith, 100 U. S. 520; Mobile v. Watson, 116 U. S. 289; Hainer's Mu- 
nicipal Securities, §§ 32, 33, 34. 

Municipal creditors— To what extend protected, — As to the rights and remedies of 
municipal creditors upon repeal of municipal charter, see Meriwether v. Garrett, 102 
U. S. 472; Yon Hoffman v. City of Quincy, 4 Wall. 535; Mount Pleasant v. Beckwith, 
100 U. S. 514; Shapleigh v. San Angelo, 167 U'. S. 646; Wolff v. New Orleans, 103 U. S. 
358; New Orleans v. New Orleans Water Works Co., 142 U. S. 79; In re Copenhaver, 54 
Fed. Rep. 660 ; Mobile v. Watson, 116 U. S. 289; Amy v. Shelby Co. Taxing District, 114 
Y. S. 387; 1 Dillon Munc. Corp., 4th ed., §69; Hainer's Municipal Securities, § 34 and 
cases. 

Where the resource for the payment of the bonds of a municipal corporation is the 
power of taxation existing when the bonds were issued, any law which withdraws or 
limits the taxing power and leaves no adequate means for the payment of the bonds is 
forbidden by the constitution, and is null and void. Mobile v. Watson, 116 U. S. 289; 
1 Dillon Munc. Corp., 4th ed., §69 n.; Hainer's Municipal Securities, §§ 27-120, et seq. 

Judg'ment for tort. — The doctrine of the previous note does not apply to judgments 
for torts against a municipal corporation. Louisiana v. Mayor of New Orleans, 109 
U. S. 285. 

Police— Insurance and pension fund.— A statute provided for the payment of the 
police force of the city of San Francisco at a rate not exceeding $102 a month for each 
officer, and that the treasurer of the city and county "should retain from the pay of 
each police officer the sum of two dollars per month, to be paid into a fund to be known 
as the police life and health insurance fund," to be administered as provided in said 
act, etc. The act provided, that upon the death of any member of the police force, 
there should be paid out of said fund to his legal representatives, the sum of one thou- 
sand dollars. The fund so created was a pubhc fund, entirely at the disposal of the 
government and a police officer had no vested right in it that could not be taken away 
by the state prior to the happening of the conditions entitling the officer or his repre- 
sentatives to payment therefrom. Pennie v. Reis, 132 U. S. 464. 

Oblig-ation of contracts— Municipal franchises.— Franchises granted to corpora- 
tions to supply cities and their inhabitants with water, light, methods of transit, etc., 
are contracts protected by the constitution. New Orleans Gas Co. v. Louisiana Light 
Co., 115 U. S. 650; New Orleans Co. v. Rivers, 115 IT. S. 674; Citizens' St. R. Co. v. City 
Co., 56 Fed. Rep. 746; Louisville Co. v. Citizens' Co., 115 U. S. 683; St. Tammany Wa- 
ter Works V. New Orleans Water Works, 120 U. S. 64; City Railway Co. v. Citizens' R. 
Co., 166 U. S. 557; Western Paving, etc., Co. v. Citizens' St. R. Co., 128 Ind. 525. 

The rights and franchises which have become vested upon the faith of such contracts 



§ 2 CONSTITUTION OF THE UNITED STATES. 10 

can be taken by the public, upon just compensation to the owners, under the power of 
eminent domain. New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650, 673. 

The granting of privileges by a municipal corporation to a private company, to supply 
the inhabitants of the corporation with gas, does not prohibit the municipality from 
erecting gas works. Hamilton, etc., Co. v. Hamilton City, 146 U. S. 258. 

The granting of an exclusive privilege to a water company of furnishing a city and its 
inhabitants with water does not prohibit the municipahty from constructing and oper- 
ating water-works of its own. Lehigh Water Company's Appeal, 102 Pa. St. 515. 

The grant by ordinance of a municipal corporation, under authority of charter pro- 
visions, of a right to supply gas or water to a municipality and its inhabitants through 
pipes and mains laid in the streets, upon condition of the performance of its service by 
the grantee, is the grant of a franchise vested in the state in consideration of the per- 
formance of a public service, and, after performance by the grantee, is a contract pro- 
tected by the constitution of the United States against state legislation to impair it. 
Walla Walla City v. Walla Walla Water Co., 172 U. S. 1 ; New Orleans Gashght Co. v. 
Louisiana Light, etc., Co., 115 U. S. 650. 

Where an ordinance authorizing a contract with a water company for a w^ater supply 
for a period of years declared that, until such contract should be avoided by a court of 
competent jurisdiction, the city should not erect, maintain, or become interested in any 
water-works, except the ones estabhshed by the company, an ordinance thereafter 
passed during the term of such contract, which provided for the immediate construction 
of a system of water-works by the city for the purpose of supplying the city and its in- 
habitants with water, impaired the obhgation of the former. Walla Walla City v. 
Walla Walla Water Co., 172 U. S. 1. 

Contracts valid when made— Subsequent leg-islation and decisions.— If a contract 
when made is valid by the laws of the state, as then expounded by all the departments 
of its government, and administered in its courts of justice, its validity and obligation 
can not be impaired by any subsequent act of the legislature of the state, or decision of 
its courts, altering the construction of the law. Taylor v. Ypsilanti, 105 U. S. 60; Ohio 
Life Ins. Co. v. Debolt, 16 How. 416; City v. Lamson, 9 Wall. 477; Douglas County v. 
Pike, 101 U. S. 677 ; Stephenson v. Boody, 139 Ind. 60. 

Municipal bonds issued under a statute which, when passed, was valid by the laws of 
the state, as declared and acted upon by the several departments of its government, are 
not affected by decisions of the supreme court of the state rendered thereafter. Taylor 
V. Ypsilanti, 105 U. S. 6. 

State constitution — Amendments. — Obligations of contracts can not be impaired by 
amendments to the state constitution. Fisk v. Jefferson Police Jury, 116 U. S. 131 ; 
Von Hoffman v. City of Quincy, 4 Wall. 535; Nelson v. St. Martin's Parish, 111 U. S. 
716; County of Moultrie v. Eockingham Savings Bank, 92 U. S. 631; Bier v. McGehee, 
148 U. S. 137; 2 EUiott Eailroads, § 832. 

Ulti'a vires contracts. — If the contract of a corporation is ultra vires, legislation in 
conflict therewith does not impair the obligation of a contract. City of New Orleans 
V. New Orleans Water Works Co., 142 U. S. 79. 

Grant of franchises — k state law. — Municipal grants, under legislative authority, to 
corporations to occupy and use streets for the purpose of supplying the municipality and 
its inhabitants with gas, water, transit facilities, etc., are laws within the mean- 
ing of the provision of the constitution forbidding states to pass any law impairing the 
obhgation of contracts. Citizens' St. R. Co. v. City Ry. Co., 56 Fed. Rep. 746 ; New Or- 
leans Gaslight Co, v. Louisiana, etc., Co., 115 U. S. 650; Water Works Co. v. Rivers, 
115 U. S. 674. 

A municipal ordinance, not passed under legislative authority, is not a law of the 
state, within the constitutional prohibition against a state law impairing the obligation 
of contracts. A suit to prevent the enforcement of such an ordinance would not be one 



11 • THE CONGRESS. § 2 

arising under the federal constitation. Hamilton Gaslight and Coke Co. v. Hamilton 
City. 146 r. S. 258; Missouri v. Harris, 144 U. S. 210. 

Street car companies— Ordinance— Contract.— An ordinance of a city granting to a 
street railroad company the use of its streets for thirty years, in consideration that the 
company lay its tracks and operate a railway thereon upon certain conditions pre- 
scribed by the ordinance, when accepted by the company and the road built and oper- 
ated as specified, constitutes a contract which the state is not at liberty to impair during 
its continuance. City Eailway Co. v. Citizens' R. Co., 166 U. S. 557; Western Paving, 
etc., Co. v. Citizens' St. R. Co., 128 Ind. 525. 

Amendment— Extension— Acceptance— Estoppel.— If the term of the contract in 
such case be extended by ordinance, such extension being beneficial to the company, 
acceptance thereof will be presumed ; if such extension is granted at the request of the 
company, such previous request obviates the necessity of a subsequent acceptance. 
Where the extension is granted without consideration, the city will be estopped to deny 
the validity of the extension if the company incur a new liability by issue of bonds and 
mortgage securing the same, which are accepted by investors on the faith of the city's 
action. City Eailway Co. v. Citizens' E. Co., 166 U. S. 557. 

In such case the continued operation of the road is a sufiicient consideration for the 
extension of the franchise. City Eailway Co. v. Citizens' E. Co., 166 U. S. 557. 

A subsequent contract and ordinance, granting to another railroad company the right 
to occupy the streets for street railroad purposes, which the prior company has right to 
use under its contract, is invalid, in so far as it may be construed to interfere with the 
prior company in the construction, operation and maintenance of its street car system. 
City Eailway'Co. v. Citizens' E. Co., 166 U. S. 557. 

Railroad — Contract — License. — An ordinance which authorizes a railroad company 
to erect new bridges of a certain construction, provided said company shall construct 
good and sufiicient approaches and grade to each of said bridges and extend the same, 
etc., does not constitute a contract when accepted or acted upon; it is only a license. 
Wabash E. Co. v. Defiance, 167 U. S. 88; Baltimore v. Baltimore Trust & G. Co., 167 
IT. S. 98. 

The legislative power of a city may control and improve its streets, and such power, 
when duly exercised by ordinances, will override any license previously given, by 
which the control of a certain street has been surrendered to any individual or corpora- 
tion. The common council can no more denude itself of the right to improve streets by 
regrading or otherwise than it can of its power to legislate for the benefit of the health, 
safety and morals of the inhabitants of the city. Wabash E. Co. v. Defiance, 167 U. S. 88. 

Yiaduct— Contract— Subsequent leg'islation. — An agreement between a railroad 
company and a city respecting the erection of a viaduct entered into by authority of a 
statute, is a contract in such sense that the respective parties thereto continue to be 
bound by its provisions so long as the legislation, in virtue of which it was entered into, 
remains unchanged ; but it remains within the power of the legislature, in the exercise 
of police power, to supervise, control and change such agreements, saving any rights 
previously vested. Chicago, etc., Eailroad Co. v. Nebraska, 170 U. S. 57. 

Power to regulate use of streets is a continuing* one— Street car— Double tracks.- 
The power to regulate the use of streets is a continuing power, and is not exhausted by 
being once exercised. Where a municipal corporation has granted to a street car com- 
pany the right or license to lay double tracks in a street, it may by ordinance thereafter, 
in the exercise of its power to regulate the use of the street, require that one of the tracks 
be taken up. Such an ordinance does not change the terms of a contract, if the power 
of regulation is exercised in good faith and not arbitrarily or capriciously. Baltimore v. 
Baltimore Trust Co., 166 U. S. 673. 

Exclusive privileg'e — Water contract. — A grant, under legislative authority, of an 
exclusive privilege, for a term of years, of supplying a municipal corporation and its 



§ 2 CONSTITUTION OF THE UNITED STATES. 12 

people with water drawn by means of a system of water-works from a particular stream 
or river does not preclude a grant to other persons of the privilege of supplying, during 
the same period, the same corporation and people with w^ater drawn in like manner 
from a different stream or river. Stein v. Bienville Water Supply Co., 141 U. S. 67; 
Stein V. Bienville Water Supply Co., 34 Fed. Eep. 145. 

Where the exclusive privilege to supply the city and its inhabitants with water was 
not restricted to water drawn from a particular stream, but embraced water from any 
other stream, a grant of a privilege to any other person or corporation to supply water 
to the city or its inhabitants is inconsistent with the clause of the iN'ational Constitution 
forbidding a state from passing any law impairing the obligation of contracts. St. Tam- 
many Water Works v. New Orleans Water Works, 120 U. S. 64. 

Where the city of New Orleans, acting under legislative authority, granted to a water 
company, for the term of fifty years, the exclusive privilege of supplying that city and 
its inhabitants "with water from the Mississippi, or any other stream or river, by 
mains or conduits, and for erecting and constructing any necessary works or machines 
for that purpose," and, subsequently, under the sanction of a new state constitution, 
adopted after that contract was made, the city passed an ordinance allowing the right 
and privilege to an individual to lay water pipes in certain streets from the said river to 
supply water to a hotel, the grant was inconsistent with the previous one to the water 
company, and the provision in the new constitution of Louisiana and the ordinance 
impaired the city's contract with the water-works company, and were void. New 
Orleans Water Works Co. v. Elvers, 115 U. S. 674; St. Tammany, etc., Co. v. New 
Orleans Water Works Co., 120 U. S. 64. 

Street car companies— Modiflcation of charter— Imposition of additional bur- 
dens. — No question can arise as to the impairment of the obligation of a contract, when 
a street car company accepts all of its corporate powers subject to the reserved power of 
the state to modify its charter and to impose additional burdens upon the enjoyment of 
its franchise, where, after a city has granted to such company, by ordinance, the right 
of operating a street railway with the requirement that it should pave between the rails, 
and, thereafter, under a subsequent act of the legislature authorizing it, the city 
assessed a special tax against the company and required it to pave the street for one 
foot outside of the rails. Sioux City Street Ry. Co. v. Sioux City, 138 U. S. 98. 

Police power — Not impaired. — The granting of franchises to street car companies, 
water companies, gas companies, etc., involving privileges or exclusive privileges, does 
not impair the police power of the state. The state and its municipalities, to the extent 
of the powers delegated to them, may continue to exercise the police power over such 
corporations, and may make all regulations reasonably necessary to secure and protect 
the public health, public morals and the public safety. New Orleans Gas Co. v. Louisi- 
ana Light Co., 115 U. S. 650; New York & N. E. R. Co. v. Bristol, 151 U. S. 556; Chi- 
cago, etc., R. Co. V. Chicago, 166 IT. S. 226; New Orleans Water Works Co. v. Rivers, 
115 TJ. S. 674; Louisville Gas Co. v. Citizens' Gas-Light Co., 115 U. S. 683; Butchers' 
Union Slaughter-House, etc., Co. v. Crescent City, etc., Co., Ill U. S. 746. 

The legislature can not, by contract with an individual or corporation, restrain, 
diminish or surrender its power to enact laws for the preservation of the public health 
and morals. For cases in which this principle is applied to slaughter-houses, lotteries, 
prohibition of liquor traffic, etc., see Butchers' Union Slaughter-House, etc., Co. v. Cres- 
cent City, etc., Co., Ill U. S. 746; Fertihzing Co. v. Hyde Park, 97 U. S. 659; Boyd v. 
Alabama, 94 U. S. 645 ; Stone v. Mississippi, 101 U. S. 814 ; Beer Co. v. Massachusetts, 97 
U. S. 25. 

Delegation of police power to municipal corporations— Reg-ulation of use of 
streets by corporations, etc. — The state may delegate police power to municipal cor- 
porations for the regulation of the use of the streets for the reception of sewers, water 
pipes, gas pipes, pipes for heating and manufacturing purposes, underground railroads, 



13 THE CONGRESS. § 2 

trenches for wires for telegraph, telephone and other purposes. The right to exercise 
this po^Yer can not be alienated, surrendered or abridged by the legislature by any 
grant, contract or delegation whatsoever, and its proper exercise does not impair con- 
tract rights. People v. Squire, 107 N. Y. 593 ; New York v. Squire, 145 U. S. 175. 

Ordinances— Impairing' oblig'atlons of contracts— Injunction.— Courts of equity 
can not enjoin a city council from the exercise of legislative power, or from passing an 
ordinance the enforcement of which would be in derogation of contract rights. When 
ordinances have been passed which are unconstitutional and void as impairing the 
obligation of a contract, their enforcement can be prevented by appropriate proceedings 
instituted directly against the parties who seek to have the benefit of them. New Or- 
leans AVater Works v. New Orleans, 164 U. S. 471. 

Special charter— Corporation— Eminent domain.— A special charter to a coi-pora- 
tion is a contract which the legislature may not amend, or otherwise materially modify, 
unless the power to do so is expressly reserved ; yet the charter and the property of the 
corporation is subject to the right of eminent domain which remains in the state. The 
exercise of this power by a state, or by a municipal corporation under the authority of 
the state, is not an interference with the inviolability of contracts, for the reason that 
all contracts are made subject to the right of eminent domain. City of Terre Haute v. 
Evansville, etc., E. Co., 149 Ind. 174; Murphy v. Beard, 138 Ind. 560; Elliott Eoads and 
Streets, pp. 143, 144; 2 Dillon Munic. Corp., § 586. 

Same— Municipal corporation— Eailroad right of way— Condemnation— Statute. 
— A statute which authorizes a municipal corporation to condemn the property of a rail- 
road company, already devoted to public use, for the purpose of a street, is not void as 
authorizing the violation of a contract, because all contracts are subject to the exercise 
of the power of eminent domain. City of Terre Haute v. Evansville, etc., E. Co., 149 
Ind. 174. 

Private water supply system— Condemnation of .—Where a water supply system is 
owned by private individuals, and they supply water to a municipality under a contract, 
such water supply system may be condemned for the use of the city upon payment of 
compensation to the owners, including compensation for the termination of the con- 
tract. Long Island Water Supply Co. v. Brooklyn, 166 U. S. 686. 

A contract is property, and, like any other property, may be taken under condemna- 
tion proceedings for public use. Long Island Water Supply Co. v. Brooklyn, 166 U. S. 
686; New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650. 

Power of taxation. — The power of taxation on the part of a municipal corporation is 
not private property or a vested right of property ; such power is an exercise by the 
legislature of a public and governmental power which can not be imparted in perpetuity, 
and is always subject to revocation, modification and control, and is not the subject of 
contract. Williams v. New Jersey, 130 U. S. 189; New Orleans v. New Orleans Water 
Works Co., 142 U. S. 79. 

License tax — Gas companies — Street railroad companies. — A franchise to build 
and run a street railway, or to erect, construct and maintain gas works and vend gas, 
granted by the state, is as much subject to taxation as any other property. 

The imposition of a license tax by the city for the operation of a street railroad, 
or gas works, under authority of a statute, where the company has been granted a 
franchise to operate, etc., does not impair the obligation of a contract. New Orleans, 
etc., E. Co. V. New Orleans, 143 U. S. 192; Memphis Gas Co. v. Shelby Co., 109 U. S. 
398. 

Damag'es caused by mob. — The right to reimbursement for damages caused by a 
mob or riotous assemblage of people is not founded upon any contract between a city 
and the sufferers ; liability in such case is created by the law of the legislature, and can 
be withdrawn or limited at its pleasure. The character of the liability is not changed 
by the fact that the amount of loss has been ascertained and established by judgments 
rendered. Louisiana v. Mayor of New Orleans, 109 V. S. 286. 



§ 3 CONSTITUTION OF THE UNITED STATES. 14 

Limitation of actions.— The legislature may prescribe a limitation for the bringing 
of suits where none previously existed, as well as shorten the time within which suits 
to enforce existing causes of action may be commenced, provided, in each case, a rea- 
sonable time, taking all the circumstances into consideration, be given by the new law 
for the commencement of suit before the bar takes effect. Such legislation does not im- 
pair the obligation of contracts, or deprive any person of property without due process 
of law. As applied to actions upon sales for city taxes see Wheeler v. Jackson, 137 
U. S. 245; Terry v. Anderson, 95 U. S. 628. 

ARTICLE 4.— CITIZENS— PRIVILEGES AND IMMUNITIES. 

3. Citizens — Privileges and immunities. — 2. The citizens of each 
state shall be entitled to all privileges and immunities of citizens in 
the several states. * * * R. S. 1894, § 19. 

See post, §§4 and 13. 

Corporations. — Corporations are not citizens within the meaning of the constitution 
when it declares that the citizens of each state shall be entitled to the privileges and 
immunities of citizens in the several states. Pembina Co. v. Pennsylvania, 125 U. S. 
181; Norfolk, etc., R. Co. v. Pennsylvania, 136 U. S. 114; Paul v. Virginia, 8 Wall. 168; 
Farmers' and Mechanics' Ins. Co. v. Harrah, 47 Ind. 236. 

Schools— White and colored children.— States may provide separate schools for the 
education of white and colored children. Cory v. Carter, 48 Ind. 327; State v. Grubb, 
85 Ind. 213 ; State v. Gray, 93 Ind. 303 ; Plessy v. Ferguson, 16 Sup. Ct. R. 1138. 

Liquor licenses.— Licenses to retail intoxicating liquors may be confined to the 
citizens of the state where sales are made. Welsh v. State, 126 Ind. 71. 



ARTICLES IN AMENDMENT OF THE CONSTITUTION. 



ARTICLE 14.— CITIZENS— PEIYILEGES AND IMMUNITIES. 

4. Citizens — Priyileges and immnnities. — 1. All persons born or 
naturalized in the United States, and subject to the jurisdiction thereof, 
are citizens of the United States and of the state wherein they reside. 
No state shall make or enforce any law which shall abridge the privi- 
leges or immunities of citizens of the United States; nor shall any 
state deprive any person of life, liberty, or property, without due pro- 
cess of law; nor deny to any person within its jurisdiction the equal 
protection of the laws. R. S. 1894, § 39. 

See ante, §3, and post, §§6, 11, 13 and notes. 

First ten amendments. — ^The first ten articles of amendment to the constitution of 
the United States were not intended to hmit the powers of the state gavernments in 
respect to their own people, but to operate on the national government alone. Spies 
V. Illinois, 123 U. S. 131 ; Walker v. Sauvinet, 92 U. S. 90; Kelly v. Pittsburgh, 104 U. S. 
78; Presser v. Illinois, 116 U. S. 252; Miller v. Texas, 153 U. S. 535; Barron v. Balti- 
more, 7 Pet. 242; Withers v. Buckley, 20 How. 84; 3 Elliott Railroads, § 980. 

Fourteenth amendment construed. — The fourteenth amendment nullifies and makes 
void all state legislation, and state action of every kind, which impairs the privileges 
and immunities of citizens of the United States, or which injures them in life, liberty 
or property without due process of law, or which denies to any of them the equal pro- 
tection of the lavv^s. It has no reference to individual invasion of individual rights. The 
privileges and immunities protected are those arising out of the nature and essential 
character of the federal government. Civil Rights Cases, 109 U. S. 3; United States v. 
Cruikshank, 92 U. S. 542; Virginia v. Rives, 100 U. S. 313; Slaughter House Cases, 16 
Wall. 36 ; Duncan v. Missouri, 152 U. S. 377. 

Whoever, by virtue of public position under a state government, deprives another of 
property, life, or liberty, without due process of law, or denies or takes away the equal 
protection of the laws, violates the constitutional inhibition ; and as he acts in the name 
and for the state, and is clothed with the state's power, his act is that of the state. Ex 
parte Virginia, 100 U. S. 339, 

The prohibitions of the fourteenth amendment extend to all acts of the state, whether 
through its legislative, its executive or its judicial authorities. Scott v. McNeal, 154 
U. S. 34; Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226. 

Federal rule of construction of state constitution and statutes.— In proceedings for 
the taking of private property for public use the federal courts accept the construction 
placed by the supreme court of the state upon its own constitution and statutes as cor- 
rect. Backus V. Fort Street Union Depot Co., 169 U. S. 557; Long Island, etc., Co. v. 
Brooklyn, 166 U. S. 685; Merchants and Manufacturers' Bank v. Pennsylvania, 167 
U. S. 461. 

Police power. — The inhibitions of the constitution upon the impairment of the obli- 
gation of contracts or the deprivation of property without due process or the equal 

(15) 



§ 4 ARTICLES IN AMENDMENT OF THE CONSTITUTION. 16 

protection of the laws, are not violated by the legitimate exercise of legislative power in 
securing the pubhc safety, health and morals. New York & N. E. E. Co. v. Bristol, 151 
U. S. 556; New Orleans Gas Light Co. v. Louisiana, etc., Co., 115 U. S. 650; Chicago, B. 
& Q. R. Co. V. Chicago, 166 U. S. 226; Davis v. Massachusetts, 167 IT. S. 43; Mugler v. 
Kansas, 123 U. S. 623 ; Budd v. New York, 143 U. S. 517 : Barbier v. Connolly, 113 U. S. 
27 ; Giozza v. Tiernan, 148 U. S. 657 ; In re Kemmler, 136 U. S. 436 ; People v. Squire, 
145 U. S. 175; Powell v. Pennsylvania, 127 U. S. 678; Slaughter Houses Cases, 16 WaU. 
36; 1 Dillon Munic. Corp., 4th ed., § 141 and n;, 2 Beach Conts., § 1663. 

The state, when providing by legislation for the protection of the pubhc health, the 
public morals, or the public safety, is subject to the paramount authority of the consti- 
tution of the United States, and may not violate rights secured or guaranteed by that 
instrument, or interfere with the powers confided to the general government. Henderson 
V. Mayor of New York, 92 U. S. 259 ; Railroad Co. v. Husen, 95 U. S. 465 ; New Orleans 
Gas Co. V. Louisiana Light Co., 115 U. S. 650 ; Walling v. Michigan, 116 U. S. 446 ; Yick 
Wo V. Hopkins, 118 U. S. 356; Steamship Co. v. Louisiana Board of Health, 118 U. S. 
455 ; Mugler v. Kansas, 123 U. S. 623. 

Corporations— Not citizens.— A corporation is not a citizen, wdthin the meaning of 
this section, and has not privileges and immunities secured to citizens against state 
legislation. Orient Ins. Co. v. Daggs, 172 V. S. 557; Blake v. McClung, 172 L. S. 
239. 

Corporations — Persons. — Corporations are persons within the meaning of the pro- 
visions of the fourteenth amendment. Minneapolis Railway Co. v. Beckwith, 129 U. S. 
26; Santa Clara County v. Southern Pacific R. Co., 118 U. S. 394; Pembina Min- 
ing Co. V. Pennsylvania, 125 U. S. 181 ; Charlotte, etc., Ry. Co. v. Gibbes, 142 U. S. 386. 
Subjects of police reg'ulation. — The state may delegate to municipalities authority 
to regulate and control markets, the use and storing of dangerous articles, to prevent 
fires, suppress nuisances, preserve health, etc., etc. 1 Dillon Munic. Corp., 4th ed., 
§ 141 and n. 

Municipal corporations—State controL— The regulation of municipal corporations 
is a matter peculiarly within the domain of state control. Whether territory shall be 
governed by a county, a city, or a township organization is a matter of state legislation. 
A state statute does not deny equal protection of the laws, because five towns are put 
into a class by themselves, organized into a single municipal corporation, and separated 
from other towns in the state by being subjected to different control in respect to high- 
ways. Wilhams v. Eggleston, U. S. Sup. Ct., May 2, 1898; Kelly v. Pittsburgh, 104 
U. S. 78; Forsyth v. Hammond, 166 U. S. 506. 

Railroad tracks within corporate limits— Implied condition.— A railroad company 
must be deemed to have laid its tracks within the corporate limits of a city subject to 
the condition that new streets of the city might be opened and extended from time to 
time across its tracks as the public convenience required and under such restrictions as 
might be prescribed by statute. Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226. 

Laws regulating the crossing of highways by railroad companies v/ith their tracks, 
and providing for the bearing of the expense thereof by railroad companies, are not in 
conflict with the constitution as denying the equal protection of the laws. New York, 
etc., Co. V. Bristol, 151 U. S. 556. 

Where the occupation of a portion of a street, not adjacent to abutting property on 
the street, by a railroad company, under the constitution and laws of a state as inter- 
preted by the supreme court of the state, is damnum absque injuria, consequential dam- 
ages resulting from such occupancy is not a taking of the property. Statutes and 
ordinances authorizing such occupancy without providing for compensation to the 
owners are not invalid. Meyer v. City of Richmond, 172 U. S. 82. 19 Sup. Ct. 106. 

Due process of law— Compensation.— Due process of law, as apphed to judicial pro- 
ceedings instituted for the taking of private property for public use, means such process 



17 CITIZENS PRIVILEGES AND IMMUNITIES. § 4 

as recognizes the right of the owner to be compensated if his property be wrested from 
him and transferred to the pubhc. Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226; 
Scott V. Toledo, 36 Fed. Eep. 385 ; Elliott Roads and Streets, p. 178 ; 3 Elliott Railroads, 
§ 980, n. 1. 

Opening" street across railroad right of way— Nominal damag-es.— If the opening 
of a street across railroad tracks does not unduly interfere with the company's use of 
the right of way for legitimate railroad purposes, then the compensation would be nomi- 
nal. The owner of private property taken under the right of eminent domain obtains 
just compensation if he is awarded such sum as, under all the circumstances, is a fair 
and full equivalent for the thing taken from him by the public. In such case the city 
is not bound to condemn and pay for the fee. Chicago, B. & Q. R. Co. v. Chicago, 166 
V. S. 226. 

Subterranean telegraph, telephone and electrical illuminations— Police power.— 
Where an electric sub-way company, by the acceptance of an ordinance, acquired the 
right to lay its wires under ground, in and through the streets, avenues and highways of 
the city, in accordance with certain specified plans of construction, the ordinance pro- 
"viding that excavations and the removal and replacement of pavements to be under the 
control and supervision of the commissioner of public works, and, thereafter, the legis- 
lature created a board of commissioners of electrical sub-ways, and it was made the 
duty of such board to cause all electrical wires and other conductors of electricity to be 
removed from the surface and placed under ground wherever practicable, the statute re- 
quiring any company, operating or intending to operate electrical conductors in any city, 
to file with said board, map or maps, giving location, courses, etc., and to obtain the ap- 
proval of said board of the plan of construction, the statute also providing that the sal- 
aries and expenses of such board should be assessed upon and collected from the several 
companies operating electrical conductors in such city, which are, or shall be required 
to place and operate their conductors under ground, said act did not violate or impair 
any contract right vested in said sub-way company by said ordinance, nor did it deprive 
said company of its property without due process of law, nor deny it the equal protec- 
tion of the laws . By said statute the reserve power of the state or municipality to regu- 
late the use of the streets and highways was merely transferred from one public function- 
ary to another. Independently of any contractual relations between such company and 
the city this statute was an exercise of the general police powers of the state. New 
York V. Squire, 145 IT. S. 175; People, ex rel., v. Squire, 107 N. Y. 593; Railway Co. v. 
Gibbes, 142 U. S. 386. 

Electric wires in cities. — Laws requiring electric wires to be placed under ground 
are a legitimate exercise of police power, and are valid against telegraph companies 
w^hich have accepted the provisions of the act of congress, July 24, 1866, and thereby 
become entitled to construct lines along all post roads, etc. "Western U. Tel. Co. v. City 
of New York, 38 Fed. Rep. 552. As to telephone companies under said act aee i\ieh- 
mond V. Southern, etc., Co., TJ. S. Sup. Ct., May 22, 1899. 

Police power— Electric lig'ht company.— A company occupying the streets with gas 
pipes, electric wires, etc., for illuminating purposes, under contract with the city, is 
subject to reasonable regulations in the exercise of the police powers of the city. 
Laclede Gas Light Co. v. Murphy, 170 U. S. 78; New York v. Squire, 145 U. S. 175; St. 
Louis V. Western U. Tel. Co , 148 U. S. 92, 149 U. S. 465. 

Annexation of territory to city — Not a taking* of property.— The annexation of 
territory to a city is not a taking of property, nor does it deprive any person of his prop- 
erty. Taggart v. Claypool, 145 Ind. 690; Kelley v. Pittsburgh, 104 U. S. 78; Stiltz 
V. City of Indianapohs, 55 Ind. 515 ; Paul v. Town of Walkerton, 150 Ind. 565. 

Same.— Prior to their amendment by act of 1895, §§ 3808 and 3809, R. S. 1894. au- 
thorizing the annexation by cities of contiguous territory by ordinance, but restricting 
the right of appeal to freeholders of the territory sought to be annexed, did not deny 
CiT. AND To.— 2 



§ 4 ARTICLES IN AMENDMENT OF THE CONSTITUTION. 18 

to any person the equal protection of law and did not deprive any person of property 
without due process of law. Taggart v. Claypool, 145 Ind. 590; Pittsburg, etc., Ry. 
Co. V. City of IndianapoHs, 147 Ind. 292. 

It is for the state to determine its political subdivisions, the number and size of its 
municipal corporations, and their territorial extent. These are matters of a local na- 
ture. Forsyth v. Hammond, 166 U. S. 506. 

Due process and equal protection of law— Taxation.— The act of March 6, 1891 
(E. S. 1894, § 8408, et seq.), relating to taxation, creating a state board of tax commis- 
sioners and providing, among other things, for the assessment of " railroad track " and 
"rolling stock" of railway companies, by said state board, is a valid enactment and 
does not deny to such property owners " due process of law " or " the equal protection 
of the law," in the assessment of their property. Cleveland, etc., Ry. Co. v. Backus, 
133 Ind. 513, 541; Pittsburgh, etc., Ry. Co. v. Backus, 133 Ind. 625, 652; Evansville, 
etc., R. R. Co. V. West, 139 Ind. 254; Pittsburgh, etc., Ry. Co. v. Backus, 154 XJ. S. 421 ; 
Cleveland, etc., Ry. Co. v. Backus, 154 U. S. 445. 

Due process— Equal protection.— Under the tax law of March 6, 1891 (R. S. 1894, 
§ 8408, et seq.), the only real difference in the assessment of "railroad track" and 
"rolling stock" and other property is that other property is valued and assessed 
by assessors and county boards of review, with a right of hearing on the part of the 
owners of such property, before the county board of review, which is vested with power 
to correct errors, and a right of appeal is given from such board to the state board ; 
while property denominated "railroad track" and "rolling stock" is valued and as- 
sessed in the first instance by the state board, with a right of hearing before such board, 
to the o■v^-ners of such property, with power vested in such board to correct errors. The 
difference in the mode of assessment is not such as denies to owners of such railroad 
property the "equal protection of the law," nor does it deny them " due process of 
law." Indianapolis, etc., Ry. Co. v. Backus, 133 Ind. 609, 611; Evansville, etc., R. R. 
Co. V. West, 139 Ind. 254. 

A statute which provides for notice to the owner of a public sale of lands for taxes, 
and if the same is not sold at public sale, the same may then be sold at private sale 
without further notice to the owner, is not void, and the notice provided for is due 
process of law. Newton v. Raper, 150 Ind. 630. 

Equal protection of the law. — The provision of the constitution guaranteeing to all 
persons the equal protection of the law does not require that all persons shall have the 
right of a hearing or trial before the same tribunal, and in all the same tribunals, and 
that they shall have the same right of appeal from one tribunal to another ; but a law 
w^hich operates alike upon all persons under like circumstances is not obnoxious to the 
provisions of the fourteenth amendment to the United States constitution, that no per- 
son shall be denied the equal protection of the laws. Cleveland, etc., Ry. Co. v. Backus, 
133 Ind. 513, 529; Pittsburgh, etc., Ry. Co. v. Backus, 133 Ind. 625, 640; Evansville, 
etc., R. R. Co. V. West, 139 Ind. 254; Pittsburgh, etc., Ry. Co. v. Backus, 154 U. S. 
421; Cleveland, etc., Ry. Co. v. Backus, 154 U. S. 445. 

The application of the unit rule is not open to the objection of denying the equal pro- 
tection of the laws. Adams Express Co. v. Ohio, 165 U. S. 194. 

Due process of law — Law of the land, — "Due process of law" and "law of the 
land" mean one and the same thing, and mean that one shall hold his life, liberty 
and property under the protection of the general rules which govern society, and the 
assessment and collection of taxes, and the hearing of property owners with refer- 
ence thereto, are, from necessity, summary proceedings. Cleveland, etc., Ry. Co. v. 
Backus, 133 Ind. 513, 532; Pittsburgh, etc., Ry. Co. v. Backus, 133 Ind. 625, 644; Evans- 
ville, etc., R. R. Co. V. West, 139 Ind. 254; Cleveland, etc., Ry. Co. v. Backus, 154 U. S. 
445; Pittsburgh, etc., Ry. Co. v. Backus, 154 U. S. 421. 

In matters of taxation it is sufficient that the party assessed should have an oppor- 



19 CITIZENS PKIVILEGES AND IMMUNITIES. § 4 

tunity to be heard, either before a judicial tribunal or before a board of assessment, at 
some stage of the proceedings. Pittsburgh, etc., Co. v. Board of Public Works, 172 
U. S. 32. 

Public iiiiprovements— Street improveiiients, etc.— Assessments.— The legislature, 
in the exercise of its power of taxation, has the right to direct the whole or part of the 
expense of a public improvement, such as the laying, grading, repairing and widening 
of a street, to be assessed upon the owners of lands benefited thereby; the determina- 
tion of the territorial district which should be taxed for a local improvement is within 
the province of legislative discretion, and if the legislature provides for notice to and 
hearing of each proprietor, at some stage of the proceedings, upon the question what 
proportion of the tax shall be assessed upon his land, there is no taking of his property 
without due process of law. Spencer v. Merchant, 125 U. S. 345; Kentucky Kailroad 
Tax Cases, 115 IT. S. 321; Lent v. Tillson, 140 V. S. 316; Davidson v. New Orleans, 96 
r. S. 97, 104 ; Hagor v. Eeclamation Dist., Ill U. s. 701 ; Bauman v. Eoss, 167 U. S. 548 ; 
Walston V. Nevin, 128 U. S. 578; Stanley v. Supervisors, 121 U. S. 535; Mobile v. Kim- 
ball, 102 IT. S. 691; United States v. Memphis, 97 U. S. 284; Palmer v. McMahon, 133 
r. S. 660; Huling v. Kaw Valley Ry. Co., 130 U. S. 559; Garvin v. Daussman, 114 Ind. 
429; Kuntz v. Sumption, 117 Ind. 1. 

The rule of apportionment among the parcels benefited rests within the discretion of 
the legislature, and may be directed to be in proportion to the position,' the frontage, 
the area or the market value, or in proportion to the benefits as estimated by commis- 
sioners. Bauman v. Eoss, 167 U. S. 548; Mattingly v. District of Columbia, 97 U. S. 
687; Spencer v. Merchant, 125 IT. S. 345; Walston v. Nevin, 128 IT. S. 578; Shoemaker 
V. United States, 147 U. S. 282; Paulsen v. Portland, 149 U. S. 30; Fall Brook Dist. v. 
Bradley, 164 U. S. 112. 

Whenever the law operates alike on all persons and property, similarly situated, 
equal protection is not denied. Walston v. Nevin, 128 U. S. 578; Wurts v. Hoagland, 
114 U. S. 606; Eailroad Co. v. Eichmond, 96 U. S. 521. 

The exaction from the owner of private property of the cost of a public improvement 
in substantial excess of the special benefits accruing to him is, to the extent of such ex- 
cess, a taking, under the guise of taxation, of private property for public use without 
compensation. An assessment of abutting property under a rule which excludes any in- 
quiry as to special benefits resulting to the property assessed is illegal, and a federal 
court may entertain a suit to enjoin the enforcement of such assessment. Village of 
Norwood V. Baker, 172 U. S. 269. 

A statute which authorizes the assessment of abutting property for the cost of a pub- 
lic improvement without reference to special benefits resulting to the property from the 
improvement is void. Loeb v. Trustees of Columbia Tp., 91 Fed. Eep. 37; A'illage of 
Norwood V. Baker, 172 U. S. 269. 

Constructi.011 of sewers— Notice — Due process of law.— It is not essential to the 
validity of a section in the charter of a city granting power to construct sewers that 
there should in terms be expressed either the necessity for or the time or manner of 
notice. Where a statute authorizes a city to provide for the construction of sewers and 
drains, and to tax the cost thereof upon the adjacent property owners, but does not 
require that any notice shall be given to the property owners, failure to require notice 
does not render the statute unconstitutional or void, but notice must nevertheless be 
given, and the city would have a broad discretion with reference to the kind of notice 
and the manner of giving the same. Paulsen v. Portland, 149 U. S. 30. 

A statute conferring upon a tribunal power to finally dispose of the property rights 
of an individual, and failing to provide for notice, denies to the citizen due process of 
law, and is unconstitutional. Kuntz v. Sumption, 117 Ind. 1 ; Garvin v. Daussman. 114 
Ind. 429. 

Kind of notice and hearing'.— The notice and hearing which the constitution de- 



§ 4 ARTICLES IN AMENDMENT OF THE CONSTITUTION. 20 

mands need only be such as are adapted to the nature of the assessment proposed, and 
such as afford the property OAvner an opportunity to show that, according to the method 
prescribed for making the assessment, the amount charged against him is not correct. 
Garvin v. Daussman, 114 Ind. 429. 

Due process of law— Assessment— Notice.— Section 85, of the act of 1891, as amended 
by the act of 1893, E. S. 1894, § 3856 (see;oos^, § 466), relating to the construction of sewers 
in cities of more than one hundred thousand inhabitants, the giving of the notice of the 
work to be done, describing in such notice the boundar^^ lines of the district or area to 
be drained and to be assessed for the cost of the same, and fixing a day on which re- 
monstrances will be heard, is constitutional, the notice required by the statute being 
ample to the property holders of the district, and ample opportunity being given to the 
property owners to be heard. Swain v. Fulmer, 135 Ind. 8, 12. 

In proceedings of this character notice by publication is sufiicient. Lrent v. Tillson, 
140 V. S. 316; Paulsen v. Portland, 149 U. S. 30; Bauman v. Eoss, 167 U. S. 548. 

Federal question— Notice— Jurisdiction.— Where it is alleged that the notice of 
an assessment was insufficient, and specifically that by reason thereof property was 
sought to be taken without due process of law, a federal question is presented and the 
federal court has jurisdiction. Bellingham Bay, etc., Co. v. New Whatcom, 172 U. S. 
314. 

Water rents— Priority of lien— Due process of law. — An act making water rents a 
lien on property prior to other and earlier liens is not a divesting of property without 
due process of law. Provident Savings v. Mayor, 113 U, S. 506. 

Municipal ordinances— Arbitrary power — Discrimination. — Municipal ordinances 
which confer upon municipal authorities arbitrary power to give or mthhold consent, 
as to places or persons, for the carrying on of lawful business, are void. The adminis- 
tration of an ordinance, though it be fair on its face and impartial in appearance, so as 
practically to make unjust and illegal discriminations between persons in similar cir- 
cumstances, is within the prohibition of the fourteenth amendment. Yick Wo v. Hop- 
kins, 118 U. S. 356; Henderson v. Mayor of New York, 92 U. S. 259; Chy Lung v. 
Freeman, 92 U. S. 275; Ex parte Virginia, 100 U. S. 339; Neal v. Delaware, 103 U. S." 
370; Soon Hing v. Crowley, 113 U. S. 703; Barbier v. Connolly, 113 U. S. 27; 1 Beach 
Pub. Corp., § 507. 

Ordinances which operate on all alike, under the same circumstances, passed in the 
exercise of police power, though they relate to certain occupations and not to others, 
are not mthin the inhibitions of the constitution. The discriminations which are open 
to objection are those where persons engaged in the same business are subject to differ- 
ent restrictions, or are entitled to different privileges under the same conditions. Soon 
Hing V. Crowley, 113 TJ. S. 703 ; Barbier v. Connolly, 113 U. S. 27 ; Powell v. Pennsyl- 
vania, 127 U. S. 678; Minneapolis Eailway Co. v. Beckwith, 129 U. S. 26; In re Ah 
Kit, 45 Fed. Eep. 793. 

If all persons are treated alike under the law under the same circumstances, no per- 
son is deprived of equal protection of the laws. Leeper v. Texas, 139 U. S. 462; In re 
Converse, 137 U. S. 624; Caldwell v. Texas, 137 U. S. 692. 

An ordinance which prohibits the carrying on of washing and ironing of clothes in 
public laundries and wash-houses, within certain prescribed limits of the city, from ten 
o'clock at night until six o'clock in the morning of the following day, is purely a police 
regulation within the competency of any municipality possessed of the ordinary powers 
belonging to such bodies. Barbier v. Connolly, 113 TJ. S. 27; Soon Hing v. Crowley, 
113 U. S. 703; Minneapolis, etc., E. Co. v. Beckwith, 129 U. S. 26. 

An ordinance assuming to regulate public laundries which confers upon municipal 
authorities arbitrary power to grant or withhold consent, as to persons or places, or 
which unjustly discriminates between different races, is within the inhibitions of the 
fourteenth amendment. Yick Wo v. Hopkins, 118 U. S. 356. 



21 CITIZENS PRIVILEGES AND IMMUNITIES. § 4 

An ordinance, authorized by statute, which prohibits any person from visiting any 
gambUng place within certain hmits, in the city and county of San Francisco, does not 
conflict with any provision of the fourteenth amendment. In re Ah Kit, 45 Fed. Rep. 
793. 

A municipal ordinance of the city and county of San Francisco which declares it "to 
be unlawful for any Chinese to locate, reside or carry on business within the limits of 
the city and county, except in that district of said city and county hereinafter provided 
for their location," etc., is discriminating, against the Chinese, and unequal in its oper- 
ation as between them and others, and is an arbitrary confiscation of their homes and 
property, a depriving of them of it, without due process or any process of law ; such or- 
dinance is void as being in conflict with the constitution, treaties and statutes of the 
United States. In re Lee Sing, In re Sing Too Quan, 43 Fed. Rep. 359 ; In re Sam Kee, 
31 Fed. Rep. 680. 

Ordinance reg'nlating" rate for g^as — Federal question. — A suit to restrain the en- 
forcement of an ordinance, the enforcement of which will practically deprive a gas com- 
pany of its property without due process of law, and also deprive it of the equal protec- 
tion of the laws by compelling it sell artificial gas without any return therefor in the way 
of profit, presents a federal question. Of such a suit a federal court has jurisdiction, 
though both parties to the suit are citizens of the same state. Indianapolis Gas Co. v. 
City of Indianapolis, 82 Fed. Rep. 245. 

Ordinance— Natural g'as rates.— Where an ordinance of a city authorized the use of 
the streets, alleys and public grounds of the city for the purpose of supplying the city 
and its inhabitants with natural gas for heating and illuminating purposes for a term of 
twenty years, reserving to the common council the right to fix the rate and price to be 
charged for gas after the expiration of ten years from the date of the passage of the 
ordinance, the acceptance of such ordinance by a company created a valid contract, and 
under such contract, at the expiration of ten years, the common council had the right 
to fix the rate and price to be charged for gas, and its action fixing the rate was conclu- 
sive upon the company and the courts in the absence of a showing of bad faith or fraud. 
Logansport, etc., Gas Co. v. City of Peru, 89 Fed. Rep. 185. 

Under such contract, at the expiration of ten years, in fixing the rate or price to be 
charged for gas, the common council may take into consideration the earnings of the 
company in the past ten years. Logansport, etc.. Gas Co. v. City of Peru, 89 Fed. Rep. 
185. 

Ordinances fixing water rates. — Where individuals, companies or corporations are 
engaged in the business of furnishing water to the public under the provisions of the 
constitution and statutes of a state, subject to the right on the part of the public instru- 
mentalities to fix the rates at which the water shall be furnished, the paramount pro- 
vision of the fourteenth amendment of the United States in effect declares that such 
rates shall not be so fixed as to deprive the person furnishing the water of his property 
without just compensation. San Diego, etc., Co. v. Jasper, 89 Fed. Rep. 274. 

In such case what the person or company is entitled to ask is a fair return upon the 
value of that which it employs and furnishes for the public use and convenience. On 
the other hand, the public is entitled to demand that no more be exacted from it than 
that which is furnished is reasonably worth. For elements to be taken into considera- 
tion in determining the value and the rate to be fixed, see San Diego, etc., Co. v. Jasper, 
89 Fed. Rep. 274; Smyth v. Ames, 169 U. S. 466, 546. 

Ordinance reducing street car fare— Due process of law.— An ordinance which 
provides that tickets shall be sold by a street car company, good for one fare, including 
one transfer, ''in packages of six for twenty -five cents, and twenty-five for the sum of 
one dollar," making a reduction of the regular five-cent rate to all who purchase tickets, 
is unreasonable in a city where the current rate on mortgage investments is 6 per 
cent., and the company is only making 3.3 per cent, to 4.5 per cent, on its bona fide 



§ 4 ARTICLES IN AMENDMENT OF THE CONSTITUTION, 22 

investment and is paying 5 per cent, interest upon its bonds. Such ordinance deprives 
the company of its property without due process of law and is void under the fourteenth 
amendment. Milwaukee Electric R. & L. Co. v. City of Milwaukee, 87 Fed. Rep. 577; 
i-ce biiiyth V. Ames, 169 U. S. 466. 

^V^here the municipality has the power to regulate fares it is subject to the limita- 
tions : (1) That there is reasonable need on the part of the public, considering the 
nature and extent of the service, of lower rates and better terms than those existing ; 
(2) That the rates and terms fixed by the ordinance are not clearly unreasonable, in 
view of all the conditions. Milwaukee Electric R. & L. Co. v. City of Milwaukee, 87 
Fed. Rep. 577; Covington & Lexington, etc., Co. v. Sandford, 164 U. S. 578. 

Ordinance reg'ulating' public grounds.— The fourteenth amendment does not have 
the effect of creating a particular and personal right in the citizen to use public property 
in defiance of the constitution and laws of the state, and an ordinance of a city pro- 
hibiting the use of public grounds for the purpose of making public addresses, without 
permit from the mayor, does not violate any right guaranteed by the amendment, and 
is a valid exercise of police power. Davis v. Massachusetts, 167 U. S. 43. 

Markets. — The regulation and control of markets for the sale of provisions, including 
the places and distances from each other at which they may be kept, are matters of 
municipal police, and may be intrusted by the legislature to a city council, to be exer- 
cised as in its discretion the public health and convenience may require. Natal v. 
Louisiana, 139 U. S. 621; 2 Beach Pub. Corp., § 1267. 

An ordinance of the city of New Orleans prohibiting the keeping of a private market 
within six squares of any public market of the city, under penalty of a fine of twenty- 
five dollars, and of imprisonment for not more than thirty days, does not violate the 
fourteenth amendment. Natal v. Louisiana, 139 U. S. 621. 

Ordinance providing' for the removal of dead animals.— An ordinance granting an 
exclusive privilege for the removal of all dead animals from the city limits, when the 
owners do not desire to remove them, is a valid exercise of police power. Such ordi- 
nance is not open to the objection of creating a monopoly, or of depriving persons of 
their property without due process of law. National Fertilizer Co. v. Lambert, 48 Fed. 
Rep. 458. 

Dog's — Statutes and ordinances. — It is within the discretion of the legislature to say 
how far dogs shall be recognized as property, and under what restrictions they shall be- 
permitted to roam the streets. A statute providing "that no dog shall be entitled to 
the protection of the law unless the same shall have been placed upon the assessment 
rolls" for taxation, is not unconstitutional; and an ordinance of a city which provides 
that "no dog shall be permitted to run or be at large upon any street, alley, high- 
way, common or public square within the limits of the city," etc., provided that such 
provision "shall not apply to any dog to which a tag, obtained from the treasurer, is 
attached," is valid. Dogs are not property in the fullest sense, and are subject to the 
exercise of the police power. Sentell v. New Orleans & C. R. Co., 166 U. S. 698. 

Intoxicating' liquors— Reg'ulation — Prohibition. — The legislation by a state prohibit 
ing the manufacture within her limits of intoxicating liquors, to be there sold or bar- 
tered for general use as a beverage, does not necessarily infringe any right, privilege, or 
immunity secured by the constitution of the United States. Mugler v. Kansas, 123 U. S. 
623; License Cases, 5 How. 504; Bartemeyer v. Iowa, 18 Wall. 129; Beer Co. v. Massa- 
chusetts, 97 U. S. 25 ; Foster v. Kansas, 112 U. S. 201 ; Kidd v. Pearson, 128 U. S. 1 ; 
Gray v. Connecticut, 159 TJ. S. 74. 

There is no inherent right in a citizen to sell intoxicating liquors by retail ; it is not a 
privilege of a citizen of the state or of a citizen of the United States. The police power 
of the state may be exercised to regulate the business — to mitigate its evils or to suppress 
it entirely. Crowley v. Christensen, 137 U. S. 86. 

The right to sell intoxicating liquors is not one of the privileges and immunities of a 



23 CITIZENS PKIVILEGES AND IMMUNITIES. § 4 

citizen of the United States. Jacobs Pharmacy Co. v. City of Atlanta, 89 Fed Rep. 
244: Bartemeyer v. Iowa, 18 Wall. 129. 

Due process of law. — Prohibiting the manufacture and sale of intoxicating liquors is 
not taking property without due process of law. Mugler v. Kansas, 123 U. S. 623. 

3Iimlcipal courts. — A person is not denied the equal protection of the laws, and de- 
prived of his liberty without due process of law, when, at the time of the trial and sen- 
tence the court in which he was tried was a court de jure, and the judge who tried and 
sentenced him was at least a judge de facto. In re Manning, 139 U. S. 504. 

Jury trials. — The right to trial by jury in actions at common law is not a privilege or 
immunity which the states are forbidden to abridge by the fourteenth amendment. 
Walker v. Sauvinent, 92 U. S. 90; Church v. Kelsey, 121 U. S. 282. 

Carrying' dang'erous weapons. — A state law forbidding the carrying of dangerous 
weapons, and authorizing the arrest without warrant of any person violating such law, 
does not abridge the privileges and immunities of citizens of the United States. Miller 
V. Texas, 153 U. S. 535. 

Judg'ments for damag'es by mob. — The owner of a judgment for damages sustained 
by a mob has no such vested right in the taxing power of a city as to render its dimi- 
nution by the state to a degree affecting the present collection of the judgment a depri- 
vation of property in the sense of the constitutional prohibition. Louisiana v. Mayor 
of New Orleans, 109 U. S. 285. 



CONSTITUTION OF STATE OF INDIANA. 



AET. 

1. Bill of Rights. 

2. Suffrage and Elections. 

3. Distribution of Powers. 

4. Legislative. 

6. Administrative. 



art. 
7. Judicial. 

10. Finance. 

11. Corporations. 
13. Municipal Debt. 
15. Miscellaneous. 



R. S. 1894, § 235. Schedule. 
ARTICLE 1.— BILL OF RIGHTS. 



sec. sec. 

5. Unreasonable search or seizure. 11. 

6. Courts shall be open. 

7. No person twice in jeopardy. 12. 

8. Excessive bail and punishment pro- 

hibited. 13. 

9. Offenses bailable. 14. 
10. Trial by jury inviolate in civil cases. 



Compensation for services and prop- 
erty. 

Exemption — No imprisonment for 
debt. 

Privileges and immunities equal. 

Laws impairing contracts. 



5. Unreasonable search or seizure. — 11. The right of the people 
to be secure, in their persons, houses, papers and effects, against un- 
reasonable search or seizure shall not be violated ; and no warrant 
shall issue, but upon probable cause, supported by oath or affirmation, 
and particularly describing the place to be searched and the person or 
thing to be seized. R. S. 1894, § 56. 

Procuring" search warrant— Common law. — The provision of this section, declaring 
that "no warrant shall issue, but upon probable cause, supported by oath or affirma- 
tion, and particularly describing the place to be searched and the person or thing to be 
seized," is but an affirmance of the rights of the citizens in that particular, as the same 
existed in common law. Carey v. Sheets, 67 Ind. 375. 

Papers— Criminal actions. — Parties can not be compelled to produce private papers 
to be used against them in actions of a criminal or penal nature. Boyd v. United States, 
116 U. S. 616. 

City ordinance— Pawnbrokers— License— Examination of g*oods.— An ordinance of 
a city making it unlawful for any person to carry on the business of pawnbroker with- 
out having first procured a license, and making it the duty of every person engaged as 
a licensed pawnbroker to keep at his place of business a book in which he shall enter a 
description of the personal property pawned, etc., and providing that such book and 
such personal property shall be subject to the inspection of the police power of the city, 
is not a violation of the right of the people to be secure in their persons, houses, papers 

(24) 



25 BILL OF BIGHTS. § 6 

and effects against unreasonable searches and seizures, as the business of the pawn- 
broker is subject to the pohce power of the state. Shuman v. City of Ft. Wayne, 127 
Ind. 109. 

6. Courts shall be open. — 12. All courts shall be open; and every 
man, for injury done to him in his person, property or reputation, 
shall have remedy by due course of law. Justice shall be adminis- 
tered freely, and without purchase; completely, and without denial; 
speedily, and without delay. R. S. 1894, § 57. 

See ante, § 3. and post, §§ 11, 13 and notes. 

Due course of law— Assessments for street and sewer improvements, etc.— Notice. 

— A law which authorizes an assessment against property, but makes no provision for 
notice to the owner, and gives him no opportunity to be heard in respect to the correct- 
ness of the charges, lacks the essential element of " due process of law" and is uncon- 
stitutional. 

Kind of notice and hearing* required. — The notice and hearing need only be such 
as are adapted to the nature of the assessment proposed, and such as afford the prop- 
erty owner an opportunity to show that, according to the method prescribed for making 
the assessment, the amount charged against him is not correct. 

Suit to enforce assessment. — If the statute or ordinance under which the assessment 
is made provides that the lien of the assessment shall be enforced in a suit in a court 
of competent jurisdiction, as such action can be commenced only in pursuance of notice 
to the owner of the pendency thereof, the statute or ordinance, though it does not pro- 
vide for any other notice of the assessment, does not tend to deprive the owner of his 
property without due course or process of law. In such case, the property owner has 
his day in court, and may make defense in the suit to enforce the lien, and the statute 
or ordinance will not be invalid for want of notice of the assessment. For statutes and 
ordinances of this character held constitutional, see Garvin v. Daussman, 114 Ind. 429; 
Kizer v. Town of Winchester, 141 Ind. 694; Law v. Johnston, 118 Ind. 261; Johnson, 
etc., V. Lewis, 115 Ind. 490; McEneney v. The Town of Sullivan, 125 Ind. 407; Barber 
Asphalt Paving Co. v. Edgerton, 125 Ind. 455; Killian v. Andrews, 130 Ind. 579; Kuntz 
v. Sumption, etc., 117 Ind. 1 ; Swain v. Fulmer, 135 Ind. 8; Campbell v. Dwiggins, etc., 
83 Ind. 473. 

Due course of law— Due process of law— Equal protection of the law— Tax law.— 
The general tax law of 1891 is held a valid enactment, and does not deny to property 
owners "due course of law," or "due process of law" or "the equal protection of the 
law." For discussion of these terms and their interpretation as found in the state and 
federal constitutions, see the following: Cleveland, etc., Ey. Co. v. Backus, 133 Ind. 
513, 541; Pittsburg, etc., Ry. Co. v. Backus, 133 Ind. 635,652; Evansville, etc., R. R. 
Co. V. West, 139 Ind. 254; Pittsburg, etc., Ry. Co. v. Backus, 154 U. S. 421; Cleveland, 
etc., Ry. Co. v. Backus, 154 U. S. 445 ; Indianapolis, etc., Ry. Co. v. Backus, 133 Ind. 609. 

Street— Vacation— Obstruction to lot owner's easement of access— Remedy.— 
A remedy for recovery of damages for the obstruction by vacation or otherwise of a lot 
owner's easement of access to lot from the street is guaranteed by this section. 

When the obstruction is not upon the lot owner's fee and is remote from the lot front, 
if, nevertheless, it renders access to the lot impossible, or impairs it in a substantial 
manner at the point where it abuts on the street, the property right of the owner is 
invaded and he may recover ; but, if the lot owner, by reason of such remote obstruc- 
tion, suffers only an injury which is the same in kind, though it may differ in degree, 
from that suffered by the community in general, then his property right is not invaded, 
the obstruction is damnum absque injuria and he can not recover. Dantzer v. Indian- 
apolis Union Ry. Co., 141 Ind. 604; Pennsylvania Co. v. Stanley, 10 App. 421; Haines 



§ 7 CONSTITUTION OF STATE OF INDIANA. 26 

V. Thomas, 7 Ind. 38; Tate v. Ohio R. R. Co., 7 Ind. 479; Decker v. Evansville Ry. 
Co., 133 Ind. 493; Terre Haute, etc., R. Co. v. Bissell, 108 Ind. 113; Sohn v. Cam- 
bern, 106 Ind. 302; Dwenger v. Chicago, etc., Ry. Co., 98 Ind. 153. 

7. No person twice in jeopardy. — 14. No person shall be put in 
jeopardy twice for the same offense. No person, in any criminal pros- 
ecution, shall be compelled to testify against himself. R. S. 1894, 
§ 59. 

Jeopardy. — Jeopardy attaches only after the jury has been sworn, or, if trial is by the 
court, after trial has been entered upon. Haase v. State, 8 App. 488. 

Matter in abatement— Jeopardy.— That another prosecution is pending against the 
defendant for the same offense can not constitute matter in abatement until the defend- 
ant has been placed in jeopardy in the other action. Haase v. State, 8 App. 488. 

Different jurisdictions— City— State.— Prior to the enactment of R. S. 1894, § 1709 
(see post, § 1383 ) , the same act might be made punishable by both the state and municipal 
authorities ; if a person had been prosecuted criminally for an act done, and convicted and 
punished, still he could not claim the constitutional protection of "once in jeopardy" 
in a suit brought against him for the same act as a violation of a city ordinance, and 
this for the reason that one was a criminal and the other a civil action ; and because, 
also, while a party can not be punished twice for the same act, under the same jurisdic- 
tion, he may under different jurisdictions. City of Hammond v. New York, etc., Ry. 
Co., 5 App. 526, 535; Ambrose v. State, 6 Ind. 351; Waldo v. Wallace, 12 Ind. 569; 
Williams v. City of Warsaw, 60 Ind. 457 ; City of Indianapolis v. Huegele, 115 Ind. 581 ; 
State V. Kirk, 44 Ind. 401, 407. 

Liquor license. — It is not an offense against the laws of the state to sell intoxicating 
liquors without a city or town license, and hence R. S. 1894, § 1709 {^ee post, §1383), does 
not prohibit the recovery of a penalty for the violation of a city or town ordinance on 
this subject. Zeller v. City of Crawfordsville, 90 Ind. 262 ; Clevenger v. Town of Rush- 
ville, 90 Ind. 258; City of Frankfort v. Aughe, 114 Ind. 77. 

Civil and criminal actions for same act— Jeopardy. — The legislature may provide 
for the recovery of punitive damages, in cases where injury is caused by an illegal act, 
notwithstanding the same illegal act may subject the defendant to a criminal action, and 
such proceedings do not operate to put the defendant twice in jeopardy. State v. 
Schoonover, 135 Ind. 526; State v. Roby, 142 Ind. 168, 188. 

Keeping" a g-ambling" room— Common g-ambler- Mayor,— A conviction before the 
mayor upon an affidavit charging the defendant with keeping a gambling-room is no bar 
to a subsequent prosecution under R. S. 1894, § 2180, for being a common gambler. 
DeHaven v. State, 2 App. 376. 

Procuring" conviction — Not jeopardy. — Where a person procures his own conviction 
before the mayor for keeping a gambling-room, for the purpose of preventing action by 
the grand jury in the same matter, he is not thereby put in jeopardy, and can not plead 
his conviction in bar of an indictment for being a common gambler. DeHaven v. State, 
2 App. 376 ; Watkins v. State, 68 Ind. 427 ; Halloran v. State, 80 Ind. 586. 

Plea of g'uilty— Withdrawal of plea — Effect. — Where a plea of guilty is entered 
and accepted by the court, jeopardy attaches as much as if there had been a trial by 
juiy and a verdict of guilty returned ; but when the defendant voluntarily withdraws 
his plea with the consent and permission of the court, he waives the defense of former 
jeopardy the same as he would by moving to set aside a verdict of guilty, and for a new 
trial. Ledgerwood v. State, 134 Ind. 81. 

8. Excessive bail and punishment prohibited. — 16. Excessive bail 
shall not be required. Excessive fines shall not be imposed. Cruel 
and unusual punishment shall not be inflicted. All penalties shall be 
proportioned to the nature of the offense. R. S. 1894, § 61. 



27 BILL OF RIGHTS. * § 9 

Excessive punishment. — ^This provision of the constitution has reference to the stat- 
ute fixing tlie puishment, and not to the punisliment assessed by the jury within the 
limits fixed by the statute. Shields v. State, 149 Ind. 395 ; Siberry v. State, 149 Ind. 684. 

If the punishment fixed is legal, the supreme court can not interfere on account of its 
severity. McCulley v. State, 62 Ind. 428; Murphy v. State, 97 Ind. 579. 

It is neither cruel nor unusual punishment to adjudge the abatement of a nuisance. 
McLaughlin v. State, 45 Ind. 338. 

9. Offenses bailable. — 17. Offenses, other than murder and trea- 
son, shall be bailable by sufficient sureties. Murder or treason shall 
not be bailable when the proof is evident or the presumption strong. 
R. S. 1894, § 62. 

Defects do not invalidate— Forfeiture— Mayor.— Although a recognizance taken by 
the mayor of a city, for the appearance before him of one charged with felony, be, by 
mistake, made payable to the city instead of to the state, and to answer a charge of hav- 
ing violated "an ordinance of said city," instead of a statute of the state, it is valid 
and binding, and, upon forfeiture, may be enforced by the state. E. S. 1894, §§ 1235- 
1784; State v. Soudriette, 105 Ind. 306, 310; Evansville, etc., R. R. Co. v. West, 139 
Ind. 254. 

10. Trial by juiy inyiolate in civil cases. — 20. In all civil cases, 
the right of trial by jury shall remain inviolate. R. S. 1894, § 65. 

Civil actions. — The provision of the constitution relating to trials by jury in civil 
actions has reference to what were termed civil actions at the common law. Allen v. 
Anderson, 57 Ind. 388; McMahan v. Works, 72 Ind. 19; Lake Erie, etc., R. Co. v. 
Heath, 9 Ind. 558; Helm v. First Nat. Bank, 91 Ind. 44; Baltimore, etc., R. Co. v. 
Ketring, 122 Ind. 5. 

City, tax-payer. — A tax-payer of a city is incompetent, if objected to, to serve as a 
juror where a judgment for the recovery of money may be rendered against such city. 
Hearn v. City of Greensburg, 51 Ind. 119; City of Goshen v. England, 119 Ind. 368; 
WilUams v. City of Warsaw, 60 Ind. 457; Board, etc., v. Loeb, 68 Ind. 29. 

Eminent domain- Property for public use.— It is within the power of the legisla- 
ture to deny a jury trial in proceedings for the seizing of private property for public 
use. Dronberger v. Reed, 11 Ind. 420 ; Hymes v. Aydelott, 26 Ind. 431 ; Evansville, etc., 
R. R. Co. V. Miller, 30 Ind. 209; Anderson v. Caldwell, 91 Ind. 451; Baltimore, etc., R. 
Co. V. Ketring, 122 Ind. 5; Elliott Roads and Streets, p. 149; 3 Elhott Railroads, §951. 

Jury trial. — "Violation of municipal by-laws proper, such as fall within the descrip- 
tion of municipal police regulations, as, for example, those concerning markets, streets, 
water-works, city officers, etc., and which relate to acts and omissions that are not 
embraced in the general criminal legislation of the state, the legislature may authorize 
to be prosecuted in a summary manner, by and in the name of the corporation, and 
need not provide for a trial by jury." 1 Dillon Munc. Corp., §433; Callan v. Wilson, 
127 U. S. 540; Natal v. Louisiana, 139 U. S. 621 ; 1 Beach Pub. Corp., §535, et seq. 

The legislature may provide for the trial of suits for the collection of drainage assess- 
ments by the court and not by the jury. Laverty v. State, 109 Ind. 217; Andei-son v. 
Caldwell, 91 Ind. 451; Baltimore, etc., R. Co. v. Ketring, 122 Ind. 5. 

Street improvement assessment.— In an action to foreclose a street improvement as- 
sessment the parties are not entitled to a jury trial. Bozarth v. ^McGilliouddy, 19 
App. 26. 

11. Compensation for services and property. — 21. No man's par- 
ticular service shall be demanded without just compensation. No 



§ 11 CONSTITUTION OF STATE OF INDIANA. 28 

man's property shall be taken by law without just compensation; nor, 
except in case of the state, without such compensation first assessed 
and tendered. R. S. 1894, § 66. 

See ante, §4, and post, §13. 

Officers — Fees and salaries. — The services of officers entitled to fees or salaries fixed 
by law are not '* particular services " within the meaning of the constitution. Falken- 
burgh V. Jones, 5 Ind. 296; Turpen v. Board, etc., 7 Ind. 172; Board, etc., v. Blake, 
21 Ind. 32; Board, etc., v. Templer, 34 Ind. 322; Noble v. Board, etc., 101 Ind. 127; 
Dills V. State, 59 Ind. 15. 

Same — Cum onere. — Ofiicers take their offices cum onere, and they may be required 
to perform services for which no specific compensation is provided. Turpen v. Board, 
etc., 7 Ind. 172; Board, etc., v. Blake, 21 Ind. 32; Board, etc., v. Johnson, 31 Ind. 463; 
Falkenburgh v. Jones, 5 Ind. 296; Taylor v. Board, etc., 110 Ind. 462; Ex parte Har- 
rison, 112 Ind. 329. 

Eminent domain. — The right of eminent domain is limited only by the constitution ; 
and the only limitation in this state is that no man's property shall be taken by law 
without just compensation ; nor, except in case of the state, without such compensation 
first assessed and tendered. Consumers', etc., Co. v. Harless, 131 Ind. 446; Elliott 
Roads and Streets, p. 143. 

The right of eminent domain is not conferred, but limited by the constitution, and 
the limit is not upon the amount of the estate to be taken, but it only requires just com- 
pensation. Water Works Co. v. Burkhart, 41 Ind. 364; 3 Elliott Eailroads, § 950. 

The right to seize private property by virtue of the eminent domain must be conferred 
by statute upon municipal corporations ; the right to seize property under the eminent 
domain does not necessarily exclude the right to acquire property by contract. Leeds 
V. City of Richmond, 102 Ind. 372; 3 ElUott Railroads, § 951. 

Eminent domain. — The right of eminent domain can not be exercised except upon 
condition that just compensation shall be made to the owner, and it is the duty of the 
state, in the conduct of the inquest by which the compensation is ascertained, to see 
that it is just, not merely to the individual whose property is taken, but to the public 
which is to pay for it. Searl v. School District, 133 U. S. 553; Garrison v. New York, 
21 Wall. 196; Bauman v. Ross, 167 U. S. 548. 

Uses for which property may be taken.— Private property may be taken in the ex- 
ercise of eminent domain only for public uses, but these may include the taking of prop- 
erty for a water supply, opening of streets, parks, public squares, drains and sewers, 
and other purposes. 2 Dillon Munc. Corp., 4th ed., §§ 595-599. 

Specific property — Taxing* power. — It is only the taking of specific pieces of prop- 
erty of an individual, by virtue of the right of eminent domain, that is prohibited by 
the constitution, without compensation. The prohibition does not extend to the taxing 
power. City of Aurora v. West, 9 Ind. 74; City of Logansport v. Seybold, 59 Ind. 225 ; 
Board, etc., v. State, 147 Ind. 476. 

Annexation. — Annexation of territory to a city is not the exercise of eminent domain, 
and does not deprive a person of property within the meaning of the constitution. Tag- 
gart, etc., v. Claypool, 145 Ind. 590; Stilz v. City of Indianapolis, 55 Ind. 515; Kelly v. 
Pittsburgh, 104 U. S. 78. 

General laws authorizing common councils of cities and boards of tnistees of towns, 
by resolution, without notice to any one, to annex contiguous territory which has been 
platted into lots, and the plat recorded, are upheld. Paul v. Town of Walkerton, 150 
Ind. 565. 

Due process of law — Assessments— Taxation — Notice. — If a person have an oppor- 
tunity to appear before a court or tribunal and contest proceedings which lay a tax or 
assessment on his property, or appropriate such property, such proceedings are due 
process of law. Davidson v. New Orleans, 96 U. S. 97 ; Lent v. Tillson, 140 U. S. 316 ; 



29 BILL OF RIGHTS. § 11 

Palmer v. McMahon, 133 JJ. S. 660; Haling v. Kaw Valley R. Co., 130 U. S. 559; 
Kentuckv R. R. Cases, 115 IT. S. 321 ; Swain v. Fulmer, 135 Ind. 8; Campbell v. Dwig- 
gins, etc., 83 Ind. 473; United States v. Cruikshank, 92 U. S. 542; Leeper v. Texas, 139 
r. S. 462; Chicago, etc., R. Co. v. Chicago, 166 U. S. 226; Bauman v. Ross, 167 U. S. 
548; Fallbrook y. Bradley, 164 U. S. 112. 

Compensation. — There can be no ''due process of law" in the taking of private prop- 
erty for public use without compensation. Elliott Roads and Streets, p. 178, et seq. 

A law which authorizes an assessment against property, but makes no provision for 
notice to the owner, and gives him no opportunity to be heard in respect to the correct- 
ness of the charge, lacks the essential element of "due process of law," and is uncon- 
stitutional. Garvin v. Daussman, 114 Ind. 429; Elliott Roads and Streets, pp. 151, 152, 
154; 2 Beach Pub. Corp., § 1185. 

Applies to street improvement proceeding's.— Proceedings for street improvements, 
where the cost is to be apportioned among those benefited, although somewhat of a 
summary character, are within the rule which requires notice and a hearing in order 
that a charge may be imposed by "due process of law." Garvin v. Daussman, 114 Ind. 
429 ; Kuntz v. Sumption, 117 Ind. 1 ; Law v. Johnston, 118 Ind. 261 ; McEneney v. Town 
of Sullivan, 125 Ind. 407; Barber, etc., Co. v. Edgerton, 125 Ind. 455. 

Constitution of 1816. — Under the constitution of 1816 pre-payment of compensation 
was not required. Prather v. Jeffersonville, etc., R. Co., 52 Ind. 16, 41, and cases. 

Hig'hways and streets. — The appropriation of land for a highway is a taking by the 
state, and compensation need not be first assessed and tendered Dronberger v. Reed, 
11 Ind. 420; Anderson v. Caldwell, 91 Ind. 451, 453. 

Where a city desires to appropriate the real property of a citizen to the purposes of a 
street, the city must first comply with the provisions of the law, as to the assessment 
and tendering of damages to the owner. City of Lafayette v. Bush, 19 Ind. 326. See 
City of Lafayette v. Shultz, 44 Ind. 97. 

Streets.— The legislature may authorize the taking of private property for use as 
streets and other public highw^ays. McCormick v. President, etc., 1 Ind. 48 ; Snyder v. 
President, etc., 6 Ind. 237; Rassier v. Grimmer, 130 Ind. 219; Ray v. City of Jefferson- 
ville, 90 Ind. 567 ; Palmer v. Stumph, 29 Ind. 329. 

Compensation for property taken for public use may be made by accruing benefits, 
and this section does not necessarily require that compensation be made in money. 
Rassier V. Grimmer, etc., 130 Ind. 219; Hagaman v. Moore, 84 Ind. 496; Mclntyre v. 
State, 5 Blackf. 384; Forsyth v. Wilcox, 143 Ind. 144. 

Though land appropriated for a highway is taken for a presumably permanent use, • 
only an easement is acquired, the title and all consistent uses remaining in the owner 
or occupant. Hagaman v. Moore, 84 Ind. 496. 

A railroad company which lays its tracks in a street or highway acquires the right to 
do so subject to the easement in the public. A street railway is entitled to the use of 
the easement, and the laying and extending of its tracks in the street or highway across 
the railroad tracks, though this may be a burden and hindrance to the free and unob- 
structed use of the steam railway, do not constitute a taking of the private property of 
the steam railway company. Chicago, etc., R. Co. v. Whiting, etc., R. Co., 139 Ind. 297. 

Streets— Property taken for— Compensation— Benefits and damages.— AVhere pri- 
vate property is taken for a highway or street the owner is entitled to receive the value 
of vv^hat he has been deprived of and no more. 'Where part only of a parcel of land is 
taken for a highway the value of that part is not the sole measure of the compensation 
or damages to be paid to the owner ; but the incidental injury or benefit to the part not 
taken is also to be considered. Both special and general benefits from the laying out 
of a street may be set off against the value of the part taken, as well as against the dam- 
ages to the remainder. Bauman v. Ross, 167 L^. S. 548. 

The assessment of lands for the cost of the construction of a public work which does 



§ 11 CONSTITUTION OF STATE OF INDIANA. 30 

not benefit the owner or the land is in conflict with this provision of the constitution. 
Parke County Coal Co. v. Campbell, 140 Ind. 28. 

Improvement of streets— Chang-e of grade— Consequential damag'es— Not a tak- 
ing", etc. — The improvement of streets by a municipal corporation, though it causes 
consequential damages to abutting property, is not a taking of private property for pub- 
lic use. In the absence of constitutional or statutory provisions making the municipal- 
ity liable for such consequential damages, it is not liable therefor; such liability did not 
exist at common law. Transportation Co. V. Chicago, 99 U. S. 635 ; Chicago v. Taylor, 
125 U. S. 161; Smith v. Corporation of Washington, 20 How. 135; 2 Dillon Munic. 
Corp., 4th ed., § 990. 

Encroachments— Permanent flooding-, etc.— TMiere the real estate is actually invaded 
by superinduced additions of water, earth, sand, or other material, or by having any 
artificial structure placed on it, so as to effectually destroy or impair its usefulness, it is 
a taking, within the meaning of the constitution. Pumpelly v. Green Bay Co., 13 Wall. 
166. 

Chang-e of street g'rade. — Consequential injuries resulting from a change in the grade 
of a street do not constitute a taking of private property for a public use within the 
meaning of the constitution, and a property owner can only claim damages for such in- 
juries in cases where the right to damages is given by statute. Weis v. City of Madison, 
75 Ind. 241, 245; City of Kokomo v. Mahan, 100 Ind. 242, 246; Snyder v. President, 
etc., 6 Ind. 237; City of Lafayette v. Bush, 19 Ind. 326; City of Delphi v. Evans, 36 
Ind. 90; City of Lafayette v. Spencer, 14 Ind. 399. 

Indianapolis charter. — The act of March 6, 1891, commonly called the charter of the 
city of Indianapolis, repeals R. S. 1894, § 3508 (f^eepost, § 91), as to cities of more than one 
hundred thousand population and provides for no liability for damages for changing the 
grade of a street after it has once been established, nor does it make it obligatory upon 
the city to have such damages assessed and tendered. Hirth v. City of Indianapolis, 18 
App. 673. 

Abutting" owner.— The abutting owner has a property right in the street, which can 
not be taken from him without compensation paid or tendered ; nor can an additional 
burden be laid upon the fee without compensation paid or tendered ; nor can a street 
be diverted from the use to which it was dedicated. Lostutter v. City of Aurora, 126 
Ind. 436; Ross v. Thompson, 78 Ind. 90, 94; Common Council v. Croas, 7 Ind. 9; 
Haynes v. Thomas, 7 Ind. 38; City of Indianapolis v. Kingsbury, 101 Ind. 200. 

Damag-es, assessment. — Where the right of appeal is given, as it is in proceedings to 
establish a system of water-works (R. S. 1894, §4254, see post, § 1065), a statute author- 
izing a municipal corporation to appoint commissioners to assess damages in proceed- 
ings under the right of eminent domain is constitutional, and is not an infringement 
on the right of a citizen to have his compensation assessed by impartial men chosen by 
disinterested parties. Ray v. City of Jeffersonville, 90 Ind. 567, 572; Weaver v. Temp- 
lin, 113 Ind. 298, 301; Maxwell v. Board, 119 Ind. 20, 25; Bass v. City of Ft. Wayne, 
121 Ind. 389, 391. 

Appeal, paying" assessment.— A statute allowing an entry upon the land pending ap- 
peal from the assessment of damages, on payment to the clerk of the court of the 
amount of the damages assessed for the benefit of the land-owner, is vahd, such pay- 
ment being equivalent to a tender ; but a statute directing the clerk to hold such money 
until the case on appeal is determined is unconstitutional. Consumers', etc., Co. v. 
Harless, 131 Ind. 446, 452. 

Property devoted to public use— Eminent domain.— State regulation of property 
devoted to a public use is not the taking of property for a public purpose within the 
meaning of this section of the constitution, nor is it an interference with the guaranteed 
rights of the citizens in private property. Hockett v. State, 105 Ind. 250, 258. 

Telephone.- In legal contemplation all the instruments and appliances used by a 



31 BILL OF EIGHTS. § 12 

telephone company in the prosecution of its business are devoted to a public use, and 
property thus devoted to public use becomes a legitimate subject of legislative regula- 
tion, A statute regulating the maximum price which a telephone company shall charge 
for the use of its telephones is constitutional and valid. Hockett v. State, 105 Ind. 250. 

A city ordinance providing penalties for permitting water from an overflowing well 
or spring to flow on any street or alley is not in conflict with the bill of rights which 
provides that no man's property shall be taken by law without just compensation. 
Skaggs V. City of Martinsville, 140 Ind. 476. 

Municipal aid to railroads. — Incorporating acts of cities which confer power upon 
the municipalities to subscribe for stock in aid of railroads are not in conflict with 
§§ 1, 21, 24 or 25 of the bill of rights ; but such statutes are strictly construed. Thomp- 
son V. aty of Peru, 29 Ind. 305; City of Aurora v. West, 9 Ind. 74; City of Mt. Ver- 
non V. Hovey, 52 Ind. 563; Mayor, etc., v. State, 57 Ind. 152; Indiana, etc., R. Co. v. 
City of Attica, 56 Ind. 476; Brocaw v. Board, etc., 73 Ind. 543; Pittsburg, etc., R. Co. 
V. Harden, 137 Ind. 486; Hainer's Municipal Securities, §§ 138, 141 ; 2 Elliott Railroads, 
§§ 814-826. 

Intoxicatiug" liquors. — Laws and ordinances regulating and restricting the sale of in- 
toxicating liquors and requiring licenses to be taken out do not conflict with the pro- 
visions of this section. Davis v. Fasig, 128 Ind. 271; Decker v. Sargeant, 125 Ind. 404; 
Haggart v. Stehlin, 137 Ind. 43 ; Welsh v. State, 126 Ind. 71 ; Wiley v. Owens, 39 Ind. 429 ; 
Thomasson v. State, 15 Ind. 449; Moore v. City of Indianapolis, 120 Ind. 483; Bush v. 
City of Indianapolis, 120 Ind. 476. 

The power to restrict and regulate does not authorize cities to pass ordinances pro- 
hibiting the sale of intoxicating liquors. Loeb v. City of Attica, 82 Ind. 175; Sweet v. ^ 
City of Wabash, 41 Ind. 7 ; Duckwall v. City of New Albany, 25 Ind. 283 ; Steffy v. Town 
of Monroe City, 135 Ind. 466; Herman v. State, 8 Ind. 545. 

12. Exemption — No imprisonment for debt. — 22. The privilege of 
the debtor to enjoy the necessary comforts of life shall be recognized 
by wholesome laws, exempting a reasonable amount of property from 
seizure or sale for the payment of any debt or liability hereafter con- 
tracted; and there shall be no imprisonment for debt, except in case of 
fraud. R. S. 1894, § 67. 

Elections, penalty, imprisonment.— The act approved March 9, 1889, to secure the 
purity and freedom of the ballot, giving to the voter who has been hired, bought or in- 
duced to vote or refrain from voting, by the means therein specified, a right of action on 
the hability thereby created, is constitutional. Such liability is not a debt, but is a pen- 
alty for a tortious act, and the act is not in violation of article 1, § 22, of the bill of 
rights, abohshing imprisonment for debt, except in case of fraud. State v. Schoonover, 
135 Ind. 526, 530. 

Ordinances— Penalty. — A penalty for the violation of a municipal ordinance is not a 
debt, in the sense of the constitution. Hardenbrook v. Town of Ligonier, 95 Ind. 70; 
1 Beach Pub. Corp., § 507 (b). 

Fines and costs are not within the meaning of the above provision, prohibiting im- 
prisonment for debt. McCool v. State, 23 Ind. 127. 

The provisions of this section apply only to debts growing out of contract, express or 
implied. Lower v. Wallick, 25 Ind. 68; Turner v. Wilson, 49 Ind. 581. 

13. Privileges and immunities equal. — 23. The general assembly 
shall not grant to any citizen, or class of citizens, privileges or im- 



§ 13 CONSTITUTION OF STATE OF INDIANA. 32 

munities which, upon the same terms, shall not equally belong to all 
citizens. R. S. 1894, § 68. 

See ante, §§ 3 and 4. 

Citizens— Non-residents. This provision has no application to non-residents or per- 
sons who are not citizens of this state and who are doing business in the state. Sears 
V. Board, etc., 36 Ind. 267. See Graffly v. City of Eushville, 107 Ind. 502, 510. 

Colored children — Schools. — This provision does not prohibit the state from provid- 
ing separate schools for colored and white children. Cory v. Carter, 48 Ind. 327; State 
V. Gray, 93 Ind. 303 ; State v. Grubb, 85 Ind. 213. 

Officers, selection from classes.— The legislature can not divide citizens into classes, 
such as a residence for a certain period of time, or that of being a member of a political 
party, and require that certain officers shall be selected from such classes. City of 
Evansville v. State, 118 Ind. 426, 435 ; State v. Denny, 118 Ind. 449, 478 ; State v. Blend, 
121 Ind. 514, 522. 

Intoxicating" liquors. — The act of 1895 (Burns' Supp. 1897), §3541, amending section 
53 of the general act for the incorporation of cities by authorizing cities to restrict the 
sale of intoxicating liquors to business portions of the city {see post, § 124), is not void 
as being in conflict with this section. Shea v. City of Muncie, 148 Ind. 14. 

Ordinances — Discrimination. — Municipal ordinances placing restrictions upon law- 
ful conduct, or lawful use of property, must, in order to be valid, specify the rules and 
conditions to be observed in such conduct or business, and must admit of the exercise 
of the privilege by all citizens alike, who mil comply with such rules and conditions, 
and must not admit of the exercise, or of an opportunity for the exercise, of any arbi- 
trary discrimination by the municipal authorities between citizens who will comply. 
City of Eichmond v. Dudley, 129 Ind. 112; Bills v. City of Goshen, 117 Ind. 221; Yick 
Wo V. Hopkins, 118 U. S. 356; City of Newton v. Belger, 143 Mass. 598; City of Ply- 
mouth V. Schultheis, 135 Ind. 339; Bessonies v. City of Indianapolis, 71 Ind. 189; 
Graffty v. City of Eushville, 107 Ind. 502. 

Ordinances must be general in their nature and impartial in their operation. Citi- 
zens', etc., Co. V. Town of Elwood, 114 Ind. 322; Indianapolis Cable, etc., Co. v. Citi' 
zens', etc., Co., 127 Ind. 369; Crowder v. Town of Sullivan, 128 Ind. 489. 

Ordinance — Discrimination. — A city ordinance, requiring a hawker or peddler, who 
is not a resident of the city, and who proposes to sell goods, wares or merchandise 
which are not grown or manufactured in the county in which such city is situated to 
procure a license and pay a fee therefor before he may lawfully follow his calUng in 
such city, discriminates against the citizens and products of other communities, and is 
unconstitutional and void. Graffty v. City of Eushville, 107 Ind. 502; 2 Beach Pub. 
Corp., §1257. 

Exclusive privileg-es— Use of streets.— A municipal corporation can not grant to a 
private corporation the exclusive privilege of using its streets for the purpose of supply- 
ing the corporation, or its citizens, with light, water, fuel, transportation or the like. 
Indianapolis, etc., E. E. Co. v. Citizens' E. E. Co., 127 Ind. 369; Crowder v. Town of 
Sullivan, 128 Ind. 486; City of Eushville v. Eushville, etc., Co., 132 Ind. 575; Citizens', 
etc., Co. V. Town of Elwood, 114 Ind. 322; City of Vincennes v. Citizens', etc., Co., 132 
Ind. 114; EUiott Eoads and Streets, pp. 566-569. 

Monopolies, when unlawful. — As a general rule neither the state nor a municipal 
corporation can grant or create a monopoly. The clause in the constitution forbidding 
the granting of ''privileges or immunities which upon the same terms shall not equally 
belong to all the citizens," does not declare all monopolies unlawful. That clause 
applies only to such things as are of common right, and is merely to be applied to such 
things as are in their nature a monopoly. Citizens', etc., Co. v. Town of Elwood, 114 
Ind. 332, 336; IndianapoUs, etc., Co. v. Citizens', etc., Co., 127 Ind. 369, 388. 



33 BILL OF RIGHTS. § 14 

Anuexation of territory to cities by ordinance— Appeal— Sections 3808 and 3809, 

E. S. 189 J?.— Prior to the amendment of said sections by the act of 1895, said sections 
authorizing the annexation of contiguous territory to cities by ordinance, but restricting 
the right of appeal from the annexation proceedings to resident freeholders of the terri- 
tory annexed, did not violate this section of the constitution and were valid. Taggart 
V. Claypool, 145 Ind. 590; Pittsburg, etc., R. Co. v. City of Indianapolis, 147 Ind. 292; 
Paul V. Town of AValkerton, 150 Ind. 565. For said sections as amended see post, §§ 418, 
419. 

14. Laws impairing contracts. — 24. No ex post facto law, or law 
impairing the obligation of contracts, shall be passed. R. S. 1894, 
§ 69. 

See ante, § 2 and notes. 

The phrase ex post facto is technical, and has relation only to criminal laws ; it does 
not embrace statutes respecting private rights or civil remedies. Andrews v. Russell, 
7 Blackf . 474. 

Construction— Ex post facto law defined.— The provision in the constitution, that 
no ex post facto law shall be made, means that the legislature shall not pass any law, 
after a fact done by a citizen, which shall have relation to that fact, so as to punish 
that which was innocent when done ; or to add to the punishment of that which was 
criminal ; or to increase the malignity of a crime ; or to alter the rules of evidence so as 
to make conviction more easy. Strong v. State, 1 Blackf. 193 ; Moore v. City of Indian- 
apolis, 120 Ind. 488 ; Dinckerlocker v. Marsh, 75 Ind. 548. 

Ordinance— Sale of intoxicating' liquors— Not ex post facto.— A law can only be 
said to be retrospective or retroactive, or ex post facto, when it makes acts which were 
committed antecedent to its enactment criminal, or when it is to be applied to past 
transactions so as to create a new duty or impair vested property rights acquired under 
existing laws ; therefore, an ordinance declaring that all sales of intoxicating liquors 
thereafter made by persons failing to comply with its provisions shall be unlawful, is 
not an ex post facto law. Moore v. City of Indianapolis, 120 Ind. 483, 494. 

Contracts— Vested rig'hts— Law— Eemedies.— There are no vested rights in the law 
generally, nor in legal remedies, and it is competent for the legislature to make 
changes in these so long as they do not affect the obligation of contracts. Edwards 
V. Johnson, 105 Ind. 594; Davis v. Rupe, 114 Ind. 588; Webb v. Moore, 25 Ind. 4; 
Ealston v. Lothain, 18 Ind. 303; State v. Bennett, 24 Ind. 383; Bryson v. McCrearj^ 
102 Ind. 1 ; Goodbub v. Hornung, 127 Ind. 181. 

If a contract, when made, is valid by the laws of the state, as then expounded by all 
the departments of its government, and administered in its courts of justice, its validity 
can not be impaired by any subsequent act of the legislature, or decision of its courts 
altering the construction of the law. Stephenson v. Boody, 139 Ind. 60. 

Both the constitution of the United States and that of the state forbid the passage of 
any law impairing the obligation of contracts, and these provisions apply to municipal 
ordinances or by-laws. Crawford v. Hedrick, 9 App. 356; 1 Beach Pub. Corp., §506. 

After a lien has been acquired by an assessment under a vahd law for the repair of a 
public drain, the right to enforce the same can not be taken away by an amendment or 
repeal of the law. Crawford v. Hedrick, 9 App. 356. 

A party who seeks to overthrow a statute, as impairing the obMgation of a contract, 
must affirmatively establish that the same impairs his contractual rights and is prejudi- 
cial thereto. Currier v. Elhott, 141 Ind. 394. 

Municipal charters.— Municipal charters are not in the nature of contracts; both 
general and special municipal charters may be amended or repealed by the legislature, 
at its pleasure. Sloan v. State, 8 Blackf. 361 ; City of IndianapoHs v. The Indianapohs 
CiT. AND To.— 3 



§ 14 CONSTITUTION OF STATE OF INDIANA. 34 

Home, etc., 50 Ind. 215; Lucas v. Board, etc., 44 Ind. 524; Eichels v. Evansville, etc., 
78 Ind. 261; Warren v. City of Evansville, 106 Ind. 104; Corporation, etc., v. Studeba- 
ker, 106 Ind. 129; City of Evansville v. Summers, 108 Ind. 189; Wiley v. Corporation of 
Bluffton, 111 Ind. 152; State v. Kolsem, 130 Ind. 434; City of Evansville v. Bayard, 39 
Ind. 450; 1 Dillon Munic. Corp., 4th ed., § 54 ; 2 Beach Conts., § 1659. 

Clarksvllle— Statute,— The act of June 17, 1852, amendatory of the charter of Clarks- 
ville, so far as it authorizes the new trustees provided for by it to sue for and receive the 
funds derived from the sale of lots under the charter of 1783, granted by Virginia, does 
not impair the obligation of any contract, and is valid. Frisbie v. Fogg, 78 Ind. 269, 275. 

Offices— Not contracts— Salaries.— Offices are neither grants nor contracts, nor 
obligations which can not be changed or impaired. In the absence of constitutional 
restrictions the term of an office may be shortened, the duties of the office increased and 
the compensation lessened by the legislative will. State v. Hyde, 129 Ind. 296; Coffin 
V. State, 7 Ind. 157 ; Gilbert v. Board, etc., 8 Blackf. 81 ; Walker v. Peelle, etc., 18 Ind. 
264; Walker v. Dunham, etc., 17 Ind. 483; Board, etc., v. Chapman, Ind. App. Ct., 
Oct. 5, 1898. 

Where one lawfully holding public office has rendered official service pertaining to 
the office, under a lawful regulation fixing the rate of his compensation for such services, 
he may claim such compensation at such rate upon principles of contract, and a lawful 
change in such rate during his term can not operate retrospectively. The perfected 
obligation to pay can not be impaired by a change in the law, resolution, order or ordi- 
nance regulating the rate of compensation. Board, etc., v. Chapman, Ind. App. Ct., 
Oct. 5, 1898. 

Municipal corporation— Vested rig-ht in office or public property.— A municipal 
corporation is not clothed with any vested right in a public office, nor does it possess a 
vested right in public property ; and in transferring property and authority from one 
class of officers to another no vested right of the municipality is invaded. State v. Kol- 
sem, 130 Ind. 434; Meriwether v. Garrett, 102 U. S. 472; Board of School Com'rs v. 
Center Tp., 143 Ind. 391. 

Statute vesting- school property of school township in school city— Annexed terri- 
tory. — A statute vesting in a school city to which territory of a school township is an- 
nexed, the school property in the annexed territory, without providing compensation 
to such township, is not invalid as destroying or interfering with vested rights, as the 
township holds the title only as trustee, and the state may change the trustee. Board, 
etc., V. Center Tp., 143 Ind. 391. 

Assessment iien— Priority of— Mortg*ag"e lien.— The legislature has the power to 
enact that assessment liens shall take precedence over other pre-existing liens, upon 
the theory that the improvement enhances the value of the security. Murphy v. Beard, 
138 Ind. 560; State v. ^tna Life Ins. Co., 117 Ind. 251; Pierce v. ^tna Life Ins. Co., 
131 Ind. 284. 

Mortg^ag-e — Vested rig"ht. — A mortgage is a contract which confers on the mortgagee 
a vested right which the legislature can not afterward diminish. Sherwood v. City of 
Lafayette, 109 Ind. 411, 413; McGlothlin v. Pollard, 81 Ind. 228. 

Police power, — Sovereigns may make contracts which, under our constitution, will 
preclude them from impairing vested rights by subsequent legislation, but this result 
never follows the exercise of a purely police power. The right to legislate for the 
promotion and security of the public safety, morals and welfare, can not be surrendered 
or bartered away by the legislature. McKinney v. Town of Salem, 77 Ind. 213. 

Police power is the right of the state functionaries to prescribe regulations for the 
good order, peace, protection, comfort and convenience of the community, which do 
not encroach on the like power vested in congress by the federal constitution. Walker 
V. Jameson, 140 Ind. 591. 

Police Power— Liquor license— Contract,— A license to sell liquors is not a contract, 



35 SUFFRAGE AND ELECTIONS. § 15 

but a mere permit or tax, and is at all times within the control of the legislature. Mc- 
Kinney v. Town of Salem, 77 Ind. 213, 215; State v. Bonnell, 119 Ind. 494, 495; Moore 
V. aty of Indianapolis, 120 Ind. 483, 491; Hedderich v. State, 101 Ind. 564; Haggart 
V. Stehlin, 137 Ind. 43, 54; Shea v. City of Muncie, 148 Ind. 14; Nelson v. State, 17 
App. 403 ; State v. Gerhardt, 145 Ind. 439. 

Eellef of public officer.— A legislative act seeking to release a township tmstee and 
his bondsmen from liability on a judgment rendered against them on account of 
public funds lost in a failing bank, is void as impairing the obhgation of a contract, and 
for the additional reason that the legislature has no power to reimburse a public officer 
for money lost by him in his official capacity. McClelland v. State, 138 Ind. 321. 

An act to release a county treasurer and the sureties on his official bond, under like 
circumstances, is void as impairing the obligation of a contract. Johnson v. Board, etc., 
140 Ind. 152. 

ARTICLE 2.-SUFFRAGE AND ELECTIONS. 

SEC. SEC. 

15. Elections free. 21. Disfranchisement. 

16. Qualifications of electors. 22. Effect of holding lucrative offices. 

17. Soldiers — Seamen — Marines. 23. Defaulters not eligible. 

18. Residence. 24. Pro tempore appointments. 

19. Bribery a disqualification for office. 25. Electors free from arrest. 

20. Challenge to duel. 26. Method of election. 

15, Elections free.— 1. All elections shall be free and equal. R. S. 

1894, § 83. 

16. Qualifications of electors, — 2. In all elections not otherwise 
provided for by this constitution, every male citizen of the United 
States, of the age of twenty-one years and upward, who shall have 
resided in the state during the six months, and in the township sixty 
days, and in the ward or precinct thirty days, immediately preceding 
such election, and every male of foreign birth, of the age of twenty-one 
years and upwards, who shall have resided in the United States one year, 
and shall have resided in this state during the six months, and in the 
township sixty days, and in the ward or precinct thirty days, immedi- 
ately preceding such election, and shall have declared his intention 
to become a citizen of the United States, conformably to the laws of 
the United States on the subject of naturalization, shall be entitled to 
vote in the township or precinct where he may reside, if he shall have 
been duly registered according to law. [As amended March 14, 1881.] 
R. S. 1894, § 84. 

Qualification of voters.— The legislature can not change the qualification of voters as 
fixed by the constitution, and municipal corporations can not do so by ordinance or 
other corporate act. Morris v. Powell, 125 Ind. 281; Quinn v. State, 35 Ind. 485; 
Brewer V. McCleland, 144 Ind. 423; 1 Beach Pub. Corp., §382; 1 Dillon Munc. Corp., 
4th ed., §195. 

If an elector does not choose to indicate his choice in the manner prescribed by law, 
he can not complain if his ballot is not counted. Parvin v. Wimberg, 130 Ind. 561. 

The legislature can not classify voters and impose on one class burdens not borne by 
others, as by requiring registration of one class when similar restrictions are not 
imposed on others. Brewer v. McCleland, 144 Ind. 423. See 1 Beach Pub. Corp., § 383. 

X person can have but one place of residence at a time ; and to lose his residence in 
one place he must acquire a residence in another. Green v. Simon, 17 App. Ct. 360; 
Culbertson v. Board, etc., 52 Ind. 361; Astley v. Capron, 89 Ind. 167. 



§ 17 • CONSTITUTION OF STATE OF INDIANA. 36 

Suffrag-e.— The right of suffrage is not a natural right, but a poHtical privilege. It 
does not exist except as given by the constitution and written laws of the state. Gougar 
V. Timberlake, 148 Ind. 38. 

The right of suffrage is not given by the federal constitution, but by the state. Gougar 
V. Timberlake, 148 Ind. 38. 

Woman suffrag-e.— Under the present constitution the right of suffrage can not be 
extended to women. Gougar v. Timberlake, 148 Ind. 38. 

17. Soldiers— Seamen— Marines. — 3. No soldier, seaman, or ma- 
rine, in the army or navy of the United States, or of their allies, shall 
be deemed to have acquired a residence in the state, in consequence 
of having been stationed within the same ; nor shall any such soldier, 
seaman, or marine have the right to vote. R. S. 1894, § 85. 

18. Residence. — 4. No person shall be deemed to have lost his 
residence in the state by reason of his absence, either on business of 
this state or of the United States. R. S. 1894, § 86. 

Section 13 of the act of 1889 (Acts 1889, p. 157), requiring voters absenting themselves 
from the state to do certain things to retain their residence is invahd. Morris v. Pow- 
ell, 125 Ind. 281. 

19. Bribery a disqualification for office. — 6. Every person shall 
be disqualified for holding office during the term for which he may 
have been elected, who shall have given or offered a bribe, threat, or 
reward to secure his election. R. S. 1894, § 87. 

Provision self-executing". — The above provision is self-executing and needs no legis- 
lative enactment to carry it into effect and operation. Carroll v. Green, 148 Ind. 362. 

The term " disqualified," as used in the above provision, means the same thing as the 
word " ineligible " as used in the statute relating to election contests. Carroll v. Green, 
148 Ind. 362. 

The hiring, buying or offering to buy, directly or indirectly, any person to vote for 
any person for a pubhc office, amounts to bribery. Heilman v. Shanklin, 60 Ind. 424. 

Evidence that contestee offered to purchase the vote of a witness at a general election 
at which he' was a candidate is admissible in the trial of an election contest on the 
ground of the ineligibilty of contestee. Carroll v. Green, 148 Ind. 362. 

20. Cliailenge to dnel. — -7. Every person who shall give or accept 
a challenge to fight a duel, or who shall knowingly carry to another 
person such challenge, or who shall agree to go out of the state to 
fight a duel, shall be ineligible to any office of trust or profit. R. S. 
1894, § 88. 

21. Disfi'ancMsement. — 8. The general assembly shall have power 
to deprive of the right of suffrage, and to render ineligible any person 
convicted of an infamous crime. R. S. 1894, § 89. 

22. Effect of holding lucrative offices. — 9. No person holding a 
lucrative office or appointment under the United States, or under this 
state, shall be eligible to a seat in the general assembly ; nor shall any 
person hold more than one lucrative office at the same time, except as 
by this constitution expressly permitted: Provided, That ofificers [offi- 
ces] in the militia to which there is attached no annual salary, and 
the office of deputy postmaster, where the compensation does not ex- 
ceed ninety dollars per annum, shall not be deemed lucrative: And 



37 SUFFRAGE AND ELECTIONS. § 23 

Provided, also, That counties containing less than one thousand polls 
may confer the office of clerk, recorder and auditor, or any two of said 
offices, upon the same person. R. S. 1894, § 90. 

Lucrative office defined. — An office to which there is attached a compensation for 
services rendered is a lucrative office ; but an office which is wholly municipal in its 
character is not a lucrative office within the meaning of this section. State v. Kirk, 44 
Ind. 401. 

Every office for which there is compensation provided by law for the performance of 
duties is a lucrative office. Dailey v. State, 8 Blackf . 329 ; Foltz v. Kerlin, 105 Ind. 221. 

Councilman. — The office of councilman in a city, although a lucrative office in the 
ordinarA^ sense of the words, is not a lucrative office within the meaning of this section 
of the coiistitution, he having no duties to perform under the general laws of the state. 
State V. Kirk, 44 Ind. 401. 

City clerk, — The office of city clerk is not an office under the state. Mohan v. Jack- 
son, 52 Ind. 599. 

One can not hold two lucrative offices under the state at the same time. Wood v. 
State, 130 Ind. 364; Chambers v. State, 127 Ind. 365. 

Mayor. — The office of mayor of a city incorporated under the general law of 1867 is a 
judicial office, and therefore the incumbent thereof is ineligible to the office of prison 
director during the term for which he was elected mayor, both offices being lucrative 
offices. The election of one who is such director to the office of mayor, and his accept- 
ance thereof, vnll vacate his office of director. Howard v. Shoemaker, etc., 35 Ind. Ill ; 
Waldo V. Wallace, 12 Ind. 569 ; Gulick v. New, 14 Ind. 93. 

The following offices have been held to be lucrative : 

Eecorder of county. Dailey v. State, 8 Blackf. 329. 

County commi^ioner. Dailey v. State, 8 Blackf. 329. 

Township trustee. Bishop v. State, 149 Ind. 223; Creighton v. Piper, 14 Ind. 182; 
Foltz V. Kerhn, 105 Ind. 221. 

Colonel of volunteers. Kerr v. Jones, 19 Ind. 351. 

Eeporter of supreme court. Kerr v. Jones, 19 Ind. 351. 

School trustees. Chambers v. State, 127 Ind. 365; Wood v. State, 130 Ind. 364. 

Deputy county treasurer. Lucas v. Shepard, 16 Ind. 368. 

Trustee of state benevolent institutions. Chambers v. State, 127 Ind. 365. 

Postmaster, when salary exceeds ninety dollars per annum. Bishop v. State, 149 
Ind. 223. 

The acceptance of a second lucrative office will, ipso facto, terminate the right or title 
to the first. When an officer has been once inducted, under his election or appointment, 
into the second office, his subsequent resignation of the latter will not serve to restore 
his right or title to the first office. Where a public office once becomes vacant, a for- 
mer incumbent can not be restored by his own act. Bishop v. State, 149 Ind. 223 ; 
Yonkey v. State, 27 Ind. 236; Howard v. Shoemaker, 35 Ind. Ill; Gosman v. State, 
106 Ind. 203. 

23. Defaulters not eligible. — 10. No person who may hereafter be 
a collector or holder of public moneys shall be eligible to any office of 
trust or profit until he shall have accounted for and paid over, accord- 
ing to law, all sums for which he may be liable. R. S. 1894, § 91. 

Eligfibility, meaning" of. — The words " ehgible to any office," as used in this section, 
mean '' eligible to hold the office," and do not refer to the election ; if a person is eligi- 
ble to hold the office when the time for induction into office arrives, he may take the 
office, though not eligible to hold the office when elected. Shuck v. State, 136 Ind. 63 ; 



§ 24 CONSTITUTION OF STATE OF INDIANA. 38 

Brown v. Goben, 122 Ind. 113; Smith v. Moore, 90 Ind. 294, 303; Yoegel v. State, 107 
Ind. 374-380. 

Proceedings to test the ehgibihty of one elected to an office can not be commenced 
properly until the time for his induction into the office. Brown v. Goben, 122 Ind. 113 ; 
Smith V. Moore, 90 Ind. 294. 

24. Pro tempore appointments. — 11. In all cases in which it is 
provided that an office shall not be filled by the same person more 
than a certain number of years continuously, an appointment pro 
tempore shall not be reckoned a part of that term. R. S. 1894, § 92. 

One appointed sheriff in the place of the officer regularly elected for a second term of 
two years, who died after qualifying, is not ineligible to hold after the end of such term. 
State V. Linkhauer, 142 Ind. 94. 

25. Electors fi-ee from arrest. — 12. In all cases, except treason, 
felony, and breach of the peace, electors shall be free from arrest in 
going to elections, during their attendance there, and in returning 
from the same. R. S. 1894, § 93. 

If a person is arrested when he is free from arrest, he may be discharged on a writ 
of habeas corpus. Crocker v. Duncan, 6 Blackf. 278. 

26. Method of election. — 13. All elections by the people shall be 
by ballot; and all elections by the general assembly, or by either branch 
thereof, shall be viva voce. R. S. 1894, § 94. 

Numbering' ballots. — A statute requiring the numbering of ballots is unconstitutional. 
Williams v. Stein, 38 Ind. 89. 

Tie vote. — A statute which provides that where an election results in a tie vote for 
opposing candidates the judges of election shall determine by lot the person entitled to 
the office, is not in conflict with the constitutional provision that all elections shall be 
by ballot. Johnston v. State, 128 Ind. 16; Kmierer v. State, 129 Ind. 589. 

ARTICLE 3.— DISTRIBUTION OF POWERS. 

SEC. 

27. Three departments. 

27. Thi'ee departments. — 1. The powers of the government are 
divided into three separate departments: the legislative, the executive, 
including the administrativCj and the judicial; and no person charged 
with official duties under one of these departments shall exercise any 
of the functions of another, except as in this constitution expressly 
provided. R. S. 1894, § 96. 

See post, § 40 and notes. 

Independence of the three departments.— The power of the three great departments 
of the state are not merely equal, but they are exclusive in respect to the duties assigned 
to each, and they are absolutely independent of each other; one of them can not in- 
quire into the motives controlling the action of another. Langenberg v. Decker, 131 
Ind. 471; Wright v. Defrees, 8 Ind. 298. 

The departments are equal, co-ordinate and independent. Lafayette, etc., R. Co. 
V. Geiger, 34 Ind. 185. 

One department of the government can not invade the province of either of the other 
two. Hovey v. State, 127 Ind. 588; State v. Noble, 118 Ind. 350; State v. Denny, 118 
Ind. 449. 



39 DISTRIBUTION OF POWERS. § 27 

The legislature can not exercise judicial power ; its interpretation of statutes is not 
binding on the courts. Guckien v. Rothrock, 137 Ind. 355. 

Local self -g'overiiment— Right of the people— Leg-islature may not appoint local 
municipal officers.— The right of the people to govern themselves, as to matters which 
are purely local, through the medium of local municipal governments and officers 
chosen by themselves, was not surrendered upon the adoption of the constitution, but 
is still vested in them, and it can not be taken away by the legislature. The legislature 
has no power under the constitution to appoint local municipal officers. State v. Denny, 
118 Ind. 382; City of Evansville v. State, 118 Ind. 426; State v. Denny, 118 Ind. 449; 
State V. Kolsem, 130 Ind. 434. 

Mayor— Executive, administrative and Judicial duties.— Under the act of 1857, for 
the incorporation of cities, the executive and administrative duties of the mayor of a 
city are not within the executive and administrative departments of the state gov- 
ernment, as established by the constitution. In respect to such duties the mayor is 
merely an officer of a municipal corporation, and he may discharge such duties and his 
judicial functions at the same time, without violating § 1, art. 3 of the constitution. 

The judicial duties of the mayor are not incidental to his municipal office, but separate 
and independent of it ; for he is clothed, in this respect, with general power to admin- 
ister, judicially, the laws of the state. When acting as mayor of a city he is not a state 
officer, and in acting both as mayor and city judge he acts in two capacities. Though 
he acts in two capacities or offices, but one of them is an office under the state. A stat- 
ute conferring judicial powers on the mayor of a city is not unconstitutional. Waldo v. 
Wallace, 12 Ind. 569. As to the act of 1867, see Howard v. Shoemaker, 35 Ind. 111. 

Fire department. — The right to provide and maintain a fire department in towns 
and cities is vested in the inhabitants of the respective municipalities, as an element of 
local self-government, and is not subject to legislative interference, except in so far as 
the general assembly may prescribe rules to aid the people in the exercise of such right. 
An act creating a board of metropolitan police and fire department in cities having a 
certain population, providing for the election of the first commissioners by the legisla- 
ture, and giving them exclusive control of the police and fire departments of such cities 
and of matters connected therewith, is void, in so far as it relates to the fire depart- 
ment, as being in violation of the right of local self-government ; and as the provisions 
of the act (act of March 7, 1889 ; Acts 1889, p. 222), in relation to the police department 
are so connected with and dependent upon its other provisions as to be practically in- 
separable, the whole act falls. State v. Denny, 118 Ind. 449; City of Evansville v. 
State, 118 Ind. 426. 

Constabulary— Municipal board of police— Appointment.— The selection of peace 
officers is not a local matter. The legislature has power to provide for the appointment 
of a municipal board of police, and the act of 1891 (Acts 1891, p. 90) is constitutional. 
(See §§ 3717, 3727, E. S. 1894.) In providing for the appointment of officers connected 
with the constabulary of the state, there is no invasion of the right of local self-govern- 
ment, but simply the exercise of the power to provide for the selection of peace officers 
of the state. State v. Kolsem, 130 Ind. 434; State v. Blend, 121 Ind. 514; City of 
Evansville v. State, 118 Ind. 426; State v. Denny, 118 Ind. 449; State v. City of Terre 
Haute, 130 Ind. 434. 

Board of public works.— The act of March 8, 1889, assuming to give the exclusive 
control of streets, alleys, sewers, lights, water supply, etc., in cities of more than fifty 
thousand inhabitants, to boards of public works, to be chosen by the legislature from 
residents of the cities affected, is void, as denying the right of local self-government. 
State V. Denny, 118 Ind. 382. 

City commissioners-Act of 1875 valid.-The act of 1875, R. S. 1894, §3629 (see post, 
§224), providing that the circuit court shall appoint city commissioners to hear and 
determine the matters appertaining to the acquisition, the opening, laying out. altering 
and straightening of streets, etc., is not void as an attempt to confer executive power 
upon the judiciary. City of Terre Haute v. Evansville, etc., E. Co., 149 Ind. 174. 



§ 28 CONSTITUTION OF STATE OF INDIANA. 40 

Contempt— Power to punish for, who may exercise.— Only the courts and the gen- 
eral assembly can punish for contempt ; and the power to do so can not be conferred 
upon any other official or board of officials. Langenberg v. Decker, 131 Ind. 471. 

Tax commissioners. — So much of the tax law of 1889 as attempts to confer upon the 
state board of tax commissioners power to fine and imprison for contempt is unconsti- 
tutional. Langenberg v. Decker, 131 Ind. 471. 

Appointment to office— Leg-islative power.— The appointment to an office which is 
in no manner connected with the discharge of legislative duties, involves the exercise of 
executive functions, and is prohibited to the legislature by section 1, of article 3 of the 
constitution, except in so far as the power of appointment is reserved to it by section 1 
of article 15. State v. Denny, 118 Ind. 382. 

ARTICLE 4.— LEGISLATIVE. 

SEC. SEC. 

28. Local laws forbidden. 29. Laws must be general. 

28. Local laws forbidden. — 22. The general assembly shall not 
pass local or special laws in any of the following enumerated cases, 
that is to say: * * * Yot laying out, opening, and working on, 
highways, and for the election or appointment of supervisors ; vacat- 
ing roads, town plats, streets, alleys, and public squares; * * * 
R. S. 1894, § 118. 

Bee post, §§29, 38 and notes. 

Special laws. — A special law, within the meaning of § 22, article 4, of the constitu- 
tion, is such an act as at common law the courts would not have taken notice of, unless 
specially pleaded and proved, as any other fact. Hingle v. State, 24 Ind. 28. 

Where special laws are not forbidden by the constitution they may be enacted ; the 
constitution does not prohibit the enactment of special, where general laws can not be 
made apphcable. State v. Kolsem, 130 Ind. 434. 

Municipal corporations— General incorporating" acts.— General acts for the incor- 
poration of municipal corporations, based upon a classification according to population, 
are not void on the ground of being local or special legislation. 1 Dillon Munic. Corp., 
4th ed., § 41 and notes. 

The legislature has power to enact laws applicable only to a particular class of cities 
which may reasonably be thought to require rules or regulations different from those of 
other classes. Waite v. City of Santa Cruz, 89 Fed. Rep. 619. 

General law, what is. — A law which applies generally to a particular class of cases 
is not a local or special law. The constitution does not require that the operation of a 
law shall be uniform other than the operation shall be the same in all parts of the state 
under the same circumstances. Consumers, etc., Co. v. Harless, 131 Ind. 446; Haze- 
lett V. Butler University, 84 Ind. 230. 

Prospective in operation.— Sections 22 and 23 of art. 4 of the constitution are 
prospective in their terms and do not affect past special or local laws then in force. Da- 
vidson V. Koehler, 76 Ind. 398. 

General law— Leg*islative discretion.— Whether an act relating to a subject not 
enumerated in § 22 of art. 4 can or can not be made general law as required 
by section 23 of art. 4 of the constitution, is a question to be determined exclu- 
sively by the legislature and not by the courts. City of Indianapolis v. Navin, Ind. 
Sup. a., June 11, 1897; Gentile v. State, 29 Ind. 409; Woods v. McCay, 144 Ind. 316,* 
Mode V. Beasley, 143 Ind. 306 ; Pennsylvania Co. v. State, 142 Ind. 428 ; Young v. Board, 
etc., 137 Ind. 323 ; Bell v. Maish, 137 Ind. 226; State v. Kolsem, 130 Ind. 434; Hovey v. 
Foster, 118 Ind. 502; City of Evansville v. State, 118 Ind. 426; Wiley v. Bluffton, 111 



41 LEGISLATIVE. § 28 

Ind. 152; Warren v. City of Evansville, 106 Ind. 106; Johnson v. Board, etc., 107 Ind. 
15; Kelley v. State, 92 Ind. 286; Mount v. State, 90 Ind. 29; Vickery v. Chase, 50 Ind. 
462; State v. Tucker, 46 Ind. 355; Clem v. State, 33 Ind. 418; Board, etc., v. State, 147 
Ind. 476; Schneck v. City of Jeffersonville, Sup. Ct., December 20, 1898; Bank of Com- 
merce, etc., V. AViltsie, Ind. Sup. Ct., May 23, 1899; Hainer's Municipal Securities, § 17. 

Power to re§'iilate existing* corporations.— The power of the legislature to regulate 
existing corporations, either by amendment or independent act, is limited only by § 22 
of art. 4 of the constitution. That part of the act of 1897 (Burns' Supp. 1897, §5458) 
fixing the fare to be charged and collected by street railroad companies, even if local 
and special, is not in violation of said § 22 of art. 4 of the constitution, because that sub- 
ject is not included in the enumeration found in said last mentioned section. Citv of 
Indianapolis v. Navin, 151 Ind. 139. 

Section 71 of the g-eneral act for the incorporation of cities.— Said section {post, 
§ 223) of the general act for the incorporation of cities, directing the manner of sale of 
property for a street improvement, is not in conflict with the above provision of the con- 
stitution prohibiting special legislation. Brookbank v. City of Jeffersonville, 41 Ind. 406. 

Special charter— Amendment. — Where, prior to November 1, 1851, a municipal cor- 
poration was created and organized under a special act, and such act w^as continued in 
force by the constitution of 1851, the general assembly has power, by special act, to 
amend the act of incorporation, so as to enlarge the jurisdiction of the municipality ter- 
ritorially or otherwise. Wiley v. Corporation of Bluffton, 111 Ind. 152. 

General laws— Uniform system of schools.— A system that secures to all the various 
subdivisions of the state equal and uniform rights and privileges, leaving only to the 
local authorities the right, under the law, to govern the local school affairs, is a general 
and uniform system, and a law providing such a system is a general law within the 
meaning of the constitution. Robinson, etc., v. Schenck, 102 Ind. 307. 

Fees and salaries— Laws not of uniform operation.— The act of March 9, 1891, 
attempting to create a system of fees and salaries for county offices and officers, includ- 
ing treasurers, but omitting to provide any compensation, either by way of fees or salary, 
for the treasurer of one county, is void in so far as it relates to the office of county 
treasurer, as being in contravention of the provisions of §§ 22 and 23 of art. 4 of the 
constitution. State v. Boice, etc., 140 Ind. 506. 

The amendment of said act curing such omission is valid. Walsh, etc., v. State, 142 
Ind.357. 

The fee and salary act of 1891 is not unconstitutional as being special and local, in 
that it does not include in its provisions persons who were elected to office prior to the 
time it took effect. State v. Krost, 140 Ind. 41 ; Henderson, etc., v. State, 137 Ind. 552. 

Salaries of officers may be based upon the population of counties. State v. Eeitz, 62 
Ind. 159. 

Fees and salaries. — The fee and salary law of 1895 providing for salaries for all 
county officers in full for their services, and that the fees collected by them shall belong 
to their respective counties, and that certain officers shall receive as salary only an 
amount equal to the fees turned in to the county treasury, is not in conflict with this 
provision of the constitution. Legler v. Paine, 147 Ind. 181; Harmon v. Board, etc., 
Madison County, Ind. Sup. Ct., June 16, 1899. 

Removal of county seat.— An act for the relocation of a county seat is not within 
the prohibition of the provisions of the constitution against local legislation. Mode v. 
Beasley, 143 Ind. 306; Gentile v. State, 29 Ind. 409; Board, etc., v. State, 147 Ind. 476. 

Taxation— Assessment.— Taxes may be assessed within prescribed limits for the pur- 
pose of constructing pubUc highways and other public improvements. State v. Need- 
ham, 32 Ind. 325; Marks v. Trustees, etc., 37 Ind. 155; Giison v. Board, 128 Ind. iSo. 

It is only necessary that the rate of assessment and taxation shall be uniform through- 
out the locality in which the tax is levied. Bright v. McCuUough, 27 Ind. 223 ; Palmer 
v. Stumph, 29 Ind. 329; Giison v. Board, etc., 128 Ind. 65. 



§ 29 CONSTITUTION OF STATE OF INDIANA. 42 

Property within the hmits of a city can not be taxed for purely township purposes, 
in which the residents of the city have no part. Kerhn v. Eeynolds, 142 Ind. 460; 
Taggart, etc., v. State, 142 Ind. 668, 673. 

School taxes. — The statute empowering the school trustees of cities to levy a tax for 
tuition purposes is constitutional. Robinson, etc., v. Schenck, 102 Ind. 307. 

29. Laws must be general. — 23. In all the cases enumerated in 
the preceding section, and in all other cases where a general law can 
be made applicable, all laws shall be general, and of uniform operation 
throughout the state. R. S. 1894, § 119. 

See ante, § 28 and post, § 38. 

j^aws— Uniform operation— GeD era!.— A law which operates in all parts of the state 
in a similar manner where the same circumstances and conditions exist, is a law of uni- 
form operation within the meaning of this section. City of Indianapolis v. Navin, 151 
Ind. 139; Bell v. Maish, 137 Ind. 226; Young v. Board, etc., 137 Ind. 323; Gilson v. 
Board, etc., 128 Ind. 65; Elder v. State, 96 Ind. 162; Heanley v. State, 74 Ind. 99; 
State V. Eeitz, 62 Ind. 159; Hanlon v. Board, etc., 53 Ind. 123; Groesch v. State, 42 
Ind. 547 ; Pennsylvania Co. v. State, 142 Ind. 428 ; Hazelett v. Butler University, 84 
Ind. 230; Board, etc., v. Davis, 136 Ind. 503, 543; Consumers', etc., Co. v. Harless, 131 
Ind. 446; Mode v. Beasley, 143 Ind. 306. 

Municipal corporations. — It is not necessary, under the provisions of this section, 
that legislation concerning cities should operate uniformly on all the cities in the state. 
It is sufficient if it operates alike upon all cities under the same circumstances and con- 
ditions. City of Indianapolis v. Navin, 151 Ind. 139. 

A law which applies to cities having a population of 100,000 or more (Burns Supp. 
1897, §5458), when there is but one such city, but is so framed as to operate on all other 
cities in the state as they acquire the necessary population, is a general law, because it 
operates upon all cities alike under the same circumstances. City of Indianapolis v. 
Navin, 151 Ind. 139; Pennsylvania Co. v. State, 142 Ind. 428. See 1 Dillon Munic. 
Corp., 4th ed., §41. 

It is not necessary that a law concerning the fare to be collected by street railroad 
companies shall operate uniformly on all street railroads in the state. It is sufficient if 
it operates alike upon all such companies under the same circumstances and conditions. 
Such a law is general within the meaning of the constitution. City of Indianapolis v. 
Navin, 151 Ind. 139; Pennsylvania Co. v. State, 142 Ind. 428. Contra, Central Trust 
Co. of New York v. Citizens' St. E. Co., 82 Fed. Eep. 1. 

When a statute provides that all cities or towns of a named population, " according 
to the United States census," or " according to the last preceding United States census, 
shall be governed by the provisions of the act," then all cities or towns as they acquire 
the requisite population, as shown by any census thereafter taken, will be governed by 
the act, the same as if they had the required population, as shown by the preceding 
census when the law was enacted. City of Indianapolis v. Navin, 151 Ind. 139. 

It is competent for the legislature to classify municipal corporations, and legislation 
which is applicable to a class in general is valid, though there may be at the time but 
one city in that class. Fellows v. Walker, 39 Fed. Eep. 651. 

A general law, regulating the operations of corporations occupying the streets of cities 
of a certain class is not a private or local law, although it may happen that such com_ 
panies ?re all located in one or more cities of the state. People v. Squire, 107 N. Y. 593. 

Section 3541, Burns' Supp., 1897, amending §53 of the general act for the incorpora- 
tion of cities (post, § 124), and authorizing cities to restrict the sale of intoxicating 
liquors to the business portion of the city, is not in conflict with the above and preced- 
ing section of the constitution. Shea v. City of Muncie, 148 Ind. 14. 



43 ADMINISTRATIVE. § 30 

AETICLE 6.-ADMINISTRATIVE. 

SEC. SEC. 

30. Residence of municipal officers. 32. Vacancies, how filled. 

31. Impeachment of officers. 

30. Residence of municipai officers. — 6. All county, township 
and town officers shall reside within their respective counties, town- 
ships, and towns; and shall keep their respective offices at such places 
therein, and perform such duties as may be directed by law. R. S. 
1894, § 156. 

Cities — Towns. — The word 'Hown " as used in the constitution of the state, and 
in some statutes, is generic, and includes cities. City of Indianapolis v. Higgins, 141 
Ind. 1; Flinn v. State, 24 Ind. 286; State v. Craig, 132 Ind. 54; State v. Denny, 
118 Ind. 449 ; Harvey v. Osborn, 55 Ind. 535 ; Muhler v. Hedekin, 119 Ind. 481, 484. 

A town is not always a city; but it is said that a city is always a town. Harvey v. 
Osborn, 55 Ind. 535. 

Eesidence—Removal— Abandonment of office.— Removal of residence operates as 
an abandonment of office ; any voluntary act of an officer, which permanently disables 
him to perform the duties of his office, such as enlistment in the military service of the 
United States in time of war, will amount to an abandonment of office; but if a person 
leave his place of residence temporarily, on business or otherwise, but with the inten- 
tion of returning, he does not thereby lose his domicile. State v. Allen, 21 Ind. 516; 
Yonkey v. State, 27 Ind. 236; Gosman v. State, 106 Ind. 203, 208; Relender v. State, 
149 Ind. 283. 

Where an office has been abandoned by the removal of the officer to another state, it 
can not be resumed by the officer returning to the state. Relender v. State, 149 Ind. 283. 

31. Impeachment of officers. — 8. All state, county, township and 
town officers may be impeached, or removed from office, in such man- 
ner as may be prescribed by law. R. S. 1894, § 158. 

Provisions construed. — Sections 7 and 8 of article 6 of the constitution should be 
construed together, and thus construed they authorize the general assembly to provide 
by law for the impeachment or removal from office of county, township or town offi- 
cers for crime, incapacity or negligence. The act of March 11, 1875 (§ 8088, E. S. 
1894) , providing for the removal from office of any public officer for voluntary intoxica- 
tion in the business hours of his office, or for habitual intoxication, is not repugnant to 
or in conflict with any provision of the constitution, state or federal, and is valid. Mc- 
Comas V. Krug, 81 Ind. 327; Gurley, etc., v. Butler, 83 Ind. 501. 

Defalcation— Vacation of office. — Where an officer becomes a defaulter, flees the 
state, leaves no one to care for the public affairs, and indicates a settled purpose to 
abandon the office, it may be deemed vacated without a judicial determination. Os- 
borne V. State, 128 Ind. 129. 

The term "town" is generic, and includes cities. State v. Denny, 118 Ind. 449, 463; 
Flinn v. State, 24 Ind. 286; City of Indianapolis v. Higgins, 141 Ind. 1, and cases; 
Muhler v. Hedekin, 119 Ind. 481,484. 

Removal of officers.— This section imposes the duty upon the legislature to make 
provision for the removal, for just cause, of all town officers, which means city officers 
as well. An officer can be removed only for some specified neglect or violation of duty 
imposed or defined by law. Muhler v. Hedekin, 119 Ind. 481. 

32. Yacancies, how filled. — 9. Vacancies in county, township and 
town offices shall be filled in such manner as may be prescribed bv 
law. R. S. 1894, § 159. 



§ 33 CONSTITUTION OF STATE OF INDIANA. 44 

ARTICLE 7— JUDICIAL. 

SEC. SEC. 

33. Judicial powers. 35. Ineligibility of judges. 

34. Conservators of the peace. 

33. Judicial powers. — 1. The judicial power of the state shall be 
vested in a supreme court, in circuit courts, and in such other courts 
as the general assembly may establish. [As amended March 14, 
1881.] R. S. 1894, § 161. 

All judicial powers are, by force of this provision, vested in the courts of the state, 
and the legislature has no authority to invest any other tribunals or officers than the 
courts with judicial powers. The legislature can not exercise judicial powers. Shoultz 
V. McPheeters, 79 Ind. 373; Pressley v. Lamb, 105 Ind. 171; Gregory v. State, 94 Ind. 
384; State v. Noble, 118 Ind. 350; Vandercook v. WiUiams, 106 Ind. 345, 357. 

State board— Tax commissioners— Not a Judicial tribunal.— The tax law of March 
6, 1891 (R. S. 1894, § 8408, et seq.), is not invalid as conferring judicial powers upon the 
state board of tax commissioners, the constitution requiring that judicial officers shall 
be elected by the people, and the law providing that two members of said board shall 
serve by appointment, and the other members being executive and administrative state 
officers, Indianapolis, etc., R. Co. v. Backus, 133 Ind. 609, 613; Evansville, etc., R. Co. 
V. West, 139 Ind. 254. 

The state board of tax commissioners is not a judicial tribunal in the meaning of the 
constitution, but has only such gwasi-judicial poAvers as has every public officer vested 
with discretionary power, and the members of such board, w^hom the law provides shall 
be appointed by the governor, are not administrative state officers, as that, by the con- 
stitution, they are required to be elected by the people, and the other ez officio members 
of said board, being state officers, are eligible to become members of such board. Cleve- 
land, etc., R. Co. V. Backus, 133 Ind. 513, 547; Pittsburgh, etc., R. Co. v. Backus, 
133 Ind. 625, 658; Evansville, etc., R. Co. v. West, 139 Ind. 254; Pittsburgh, etc., R. 
Co, V. Backus, 154 U, S. 421; Cleveland, etc., R. Co. v. Backus, 154 U. S. 445, 

County boards of review— State board of tax commissioners— Judicial powers— 
Not controllable by courts. — County boards of review and the state board of tax com- 
missioners are clothed with quasi-iudicial powers in bringing about uniformity and 
equality of taxation. The acts of these boards are judicial in their character, and their 
judgments are not open to collateral attack. Errors or irregularities committed must 
be corrected in the mode pointed out by the statute ; and if not so corrected, they are 
conclusive. Biggs v. Board, etc., 7 App. 142. 

34. Conseryators of the peace, — 15. All judicial officers shall be 
conservators of the peace in their respective jurisdictions. R. S. 1894, 
§ 175. 

35. Ineligibility of judges. — 16. No person elected to any judicial 
office shall, during the term for which he shall have been elected, be 
eligible to any office of trust or profit under the state, other than a 
judicial office. R. S. 1894, § 176. 

Municipal officers.— City and town officers, other than those who have judicial or 

police duties, are not officers "under the state" within the meaning of the constitution. 
State V. Kirk, 44 Ind. 401; Mohan v. Jackson, 52 Ind. 599; Waldo v, Wallace, 12 Ind. 
569; Gulick v. New, 14 Ind. 93; Howard v. Shoemaker, 36 Ind. Ill; Chambers v. 
State, 127 Ind. 365. 

Judicial officers.— All juditiial officers are inehgible to any office, other than a judi- 
cial office, during the term for which thev shall have been elected. Waldo v. Wallace, 



45 FINANCE. § 36 

12 Ind. 569; Gulick v. New, 14 Ind. 93; Smith v. Moore, 90 Ind. 294; Vogel v. State, 
107 Ind. 374. 

Mayor. — The otRce of mayor of a city incorporated under the general law of 1867 is a 
judicial office. Howard v. Shoemaker, etc., 35 Ind. Ill ; AValdo v. Wallace, 12 Ind. 569; 
Gulick V. New, 14 Ind. 93. 

A person holding a judicial office may be elected during his term to an office not judi- 
cial, when the term of the latter office does not begin until after the expiration of the 
term of the judicial office. Smith v. Moore, 90 Ind. 294; Vogel v. State, 107 Ind. 374; 
Brown v. Goben, 122 Ind. 113. 

But if the term of the latter office begins on the same day that the former ends such 
person is ineligible to hold the latter office. Vogel v. State, 107 Ind. 374. 

If a person elected to a judicial office does not accept such office, he is not rendered 
ineligibile to hold other offices. Smith v. Moore, 90 Ind. 294. 

A person elected to a judicial office is not ineligible to hold a municipal office not 
judicial during the term of the judicial office. Mohan v. Jackson, 52 Ind. 599; Cham- 
bers V. State, 127 Ind. 365. 

The word eligible in this section means legally qualified. Smith v. Moore, 90 Ind. 294 ; 
State V. Bemenderfer, 96 Ind. 374; Gosman v. State, 106 Ind. 203, 207. 

The term " eligible " relates to the capacity of holding, as well as to the capacity of 



being elected. Carson v. McPhetridge, 15 Ind. 327. 

Totes cast for ineligible candidate.— Votes cast for a person not eligible to an office 
can not be counted against the opposing candidate who is eligible; and such candidate, 
though receiving a less number of votes, is duly elected and entitled to the office. 
State V. Gallagher, 81 Ind. 558; State v. Johnson, 100 Ind. 489; Copeland v. State, 126 
Ind. 51 ; Vogel v. State, 107 Ind. 374; Gulick v. New, 14 Ind. 93. 

ARTICLE 10.— FINANCE. 

SEC. SEC. 

36. Assessment and taxation, 37. State can not assume municipal debt. 

36. Assessment and taxation. — 1. The general assembly shall pro- 
vide, by law, for a uniform and equal rate of assessment and taxation ; 
and shall prescribe such regulations as shall secure a just valuation 
for taxation of all property, both real and personal, excepting such 
only, for municipal, educational, literary, scientific, religious, or char- 
itable purposes, as may be specially exempted by law. R. S. 1894, 
§ 193. 

This section does not confer power of taxation, but is rather a limitation upon the 
power to tax. State Board, etc., v. Holliday, 150 Ind. 216. 

Municipal taxation. — This section has no reference to municipal taxation. Hamilton 
V. City of Ft. Wayne, 40 Ind. 491 ; City of Eichmond v. Scott, 48 Ind. 568 ; Bank, etc., v. 
City of New Albany, 11 Ind. 139; Anderson v. Kerns Draining Co., 14 Ind. 199; Thom- 
asson V. State, 15 Ind. 449. 

But see cases cited in subsequent notes. 

Under § 26 of the act on the subject of incorporation of cities, cities were given two 
modes of ascertaining the value of real estate within their limits for the purpose of 
taxation : First, by adopting the appraisement made under the law for general tax- 
ation; and, second, by causing it to be appraised; both provisions were constitutional. 
Jones V. City of Columbus, 62 Ind. 421. 

Uniform and equal rate. — The provision of the constitution requiring a uniform and 
equal rate of assessment and taxation does not mean that the rate of assessment shall 
be uniform and equal for all purposes throughout the state, but does require a uniform 



§ 36 CONSTITUTION OF STATE OF INDIANA. 46 

rate throughout the locahty in which the particular tax is levied; if for state purposes, 
then in all parts of the state ahke ; if for county purposes, in the entire county ; and so 
in township, town or city, for the local purposes of each. Loftin, etc., v. Citizens' 
National Bank, 85 Ind. 341, 346; Eobinson, etc., v. Schenck, 102 Ind. 307; Bright v. 
McCullough, 27 Ind. 223 ; Gilson v. Board, etc., 128 Ind. 65; Palmer v. Stumph, 29 Ind. 
329; Lafayette, etc., E. Co. v. Geiger, 34 Ind. 185. 

Taxation— Just yaluatiou— Act of March 29, 1881.— Section 64, act March 29, 1881 
(Acts 1881, p. 611), does not provide for an exemption in contravention of the provis- 
ion of the constitution, article 10, § 1, that the law-making power shall prescribe such 
regulations as shall secure a just valuation for taxation of all property. Florer v. Sheri- 
dan, 137 Ind. 28, 35. 

Taxation— Uniform. — Said section providing that a person may deduct from his 
credits the amount of his bona fide debts, is not unconstitutional as not providing for a 
uniform taxation. Florer v. Sheridan, 137 Ind. 28, 35. 

General system— Act constitutional.— The act of March 6, 1891 (R. S. 1894, § 8408, 
et seq.), relating to taxation, provides a general system for the assessment and valua- 
tion of property ; the method of ascertaining the valuation and assessing each class and 
kind of property applies alike to all persons holding and owning the same class of 
property ; it applies alike to all persons under like circumstances and conditions, and 
it does not deny to railway companies the equal protection of the law, and is not in 
conflict with the constitution of the United States. Cleveland, etc., R. Co. v. Backus, 
133 Ind. 513,531; Pittsburgh, etc., R. Co. v. Backus, 133 Ind. 625, 642; Evansville, 
etc., R. Co. V. West, 139 Ind. 254; Pittsburgh, etc., R. Co. v. Backus, 154 U. S. 421, 
447; Cleveland, etc., R. Co. v. Backus, 154 U. S. 445. 

Uniform and equal rate. — The provision of the state constitution, providing "for a 
uniform and equal rate of assessment and taxation," is complied with when the same 
basis of assessment is fixed for all property, and the same rate of taxation is fixed 
within the district subject to taxation ; and the provision of the state constitution requir- 
ing that the legislature "shall prescribe such regulations as shall secure a just valuation 
for taxation of all property, both real and personal," is complied with when the legis- 
lature provides that "railroad track" and "rolling stock" of railway companies shall 
be assessed by the state board of tax commissioners, while all other propert}^ shall be 
assessed by local boards and officers. Cleveland, etc., R. Co. v. Backus, 133 Ind. 513, 
536; Pittsburgh, etc., R. Co. v. Backus, 133 Ind. 625, 647; Evansville, etc., R. Co. 
V. West, 139 Ind. 254; Pittsburgh, etc., R. Co. v. Backus, 154 U. S. 421; Cleveland, 
etc., R. Co. V. Backus, 154 U. S. 445. 

Power of taxation— Equal and uniform— Class leg-islatiou.- The taxing power of 
the state can not be made the means of levying municipal taxes upon a fraction of a 
class, and of bestowing taxes so levied upon a small fraction of the citizens. Hender- 
son, etc., V. London, etc., Co., 135 Ind. 23. 

Fireman's fund— Insurance.— The act of March 9, 1881 (Acts 1881, p. 415), for the 
creation of a fireman's pension fund, etc., is unconstitutional as not providing for a 
uniform and equal rate of taxation, and applying to a portion of a class only. Hender- 
son, etc., V. London, etc., Co., 135 Ind. 23. 

Tax by city or tOAvn on property of non-resident for school purposes.— The act of 
March 8, 1873 (R. S. 1894, § 5975, et seq.), authorizing a city or incorporated town to as- 
sess and collect a tax for the payment of a debt contracted by the city or town in con- 
structing or completing a school building, upon the property of persons who, residing 
and ha\dng their property outside of the city or corporate hmits, have, whether trans- 
ferred or not, sent their children to a school taught mthin the city or corporate limits 
in such school building, is constitutional. Kent v. ToAvn of Kentland, 62 Ind. 291; 
Robinson, etc., v. Schenck, 102 Ind. 307. See post, § 1518. 

Indirect taxes— License.— Indirect taxes, imposed not merely for the purposes of 



47 FINANCE. § 37 

revenue, but in restraint of a particular business or calling or as a license on particular 
pursuits, or as mere police regulations, do not come within the spirit or meaning of this 
section of the constitution. Bright v. McCullough, etc., 27 Ind. 223; Thomasson v. 
State, 15 Ind. 449. 

A city ordinance, passed under authority of a statute requiring dealers in intoxicat- 
ing liquors within the city to procure a license to retail and to pay therefor, is not 
unconstitutional ; that the same license fee, as a tax, is not required by all the cities in 
the state, is no valid objection to the law conferring the power on the common council 
to pass such ordinance, or to the ordinance itself; for, though taxes must be uniform 
throughout the city lev^dng them, they need not be the same thoughout different cities. 
Wiley V. Owens, 39 Ind. 429. 

Assessments — Local taxation. — There is no constitutional prohibition upon local 
taxation for objects in themselves local. The constitution recognizes a distinction 
between taxation for general purposes and assessments for improvements resulting in 
special benefit to property. The only limit upon the legislative exercise of the power 
of assessment in any given case is, that the subject-matter for which the assessment is 
made shall result in local benefit to property within some special district, as distin- 
guished from a more general good accruing to the people as citizens, and that the 
assessment shall be uniform and equal upon all property receiving such special benefit. 
Anderson v. Kerns, etc., Co., 14 Ind. 199; Law v. Madison, etc., Co., 30 Ind. 77; 
Goodrich v. Winchester, etc., Co., 26 Ind. 119; Elliott Roads and Streets, p. 370. 

Same — Streets — Hig'hways, — Streets and highways are both equally proper subjects 
for the application of the principle of assessment. Law v. Madison, etc., Co., 30 Ind. 
77; Rykers, etc., Co. v. Scott, 32 Ind. 37; State v. Needham, 32 Ind. 325; Palmer v. 
Stumph, 29 Ind. 329. 

Exemptions.— The general policy of the state is to subject all private property to the 
burden of taxation, and hence statutes exempting property from taxation must be 
strictly construed. City of Indianapolis v. Grand Master, 25 Ind. 518; Trustees, etc., 
V. Ellis, 38 Ind. 3; Eead v. Yeager, etc., 104 Ind. 195; Conklin v. Town of Cambridge 
City, 58 Ind. 130; City of South Bend v. University, etc., 69 Ind. 344; State v. City of 
Indianapolis, 69 Ind. 375; Common Council, etc., v. McLain, 8 Ind. 328. 

Widow's exemption. — A clause of a statute which exempts property to the amount 
of five hundred dollars, of a widow or unmarried female, is unconstitutional and void. 
Such exemption is not for "charitable purposes" within the meaning of the above pro- 
visions of the constitution. State v. City of Indianapolis, 69 Ind. 375 ; Warner v. Cur- 
ran, 75 Ind. 309. 

Exemptions— Farm land.— Statutes exempting farm lands from municipal taxation 
are held not to be in conflict with this section of the constitution. Hamilton v. City of 
Ft. Wayne, 40 Ind. 491. 

Education— Private property.— The intention of this provision of the constitution 
was to leave the legislature at liberty to encourage the establishment of institutions of 
learning, by exempting them from the usual burden of taxation, whether the enterprise 
might be undertaken on public or private account. Private property used for educa- 
tional purposes may be exempted from taxation. City of Indianapolis v. Sturdevant, 
24 Ind. 391. 

Lands owned by one person, and used by another for school purposes, are subject to 
taxation. Travelers' Ins. Co. v. Kent, 151 Ind. 349. 

Schools— Taxation by cities and towns.— The legislature may empower the school 
trustees of cities to levy a tax for tuition purposes. Robinson, etc., v. Schenck, 102 Ind. 
807. See City of Lafayette v. Jenners, 10 Ind. 70; Lima Tp. v. Jenks, 20 Ind. 301. 

37. State can not assume nmnicipal debt. — 6. No count}^ shall 
subscribe for stock in any incorporated compan}^ unless the same be 



§ 38 CONSTITUTION OF STATE OF INDIANA. 48 

paid for at the time of such subscription, nor shall any county loan its 
credit to any incorporated company, nor borrow money for the pur- 
pose of taking stock in any such company ; nor shall the general as- 
sembly ever, on behalf of the state, assume the debts of any county, 
city, town, or township, nor of any corporation whatever. R. S. 1894, 
§ 198. 

Railroad aid laws. — Statutes authorizing counties, townships, cities and towns to 
subscribe for stock in railroad companies, or to make donations thereto, are constitu- 
tional ; but such statutes are strictly construed. Unless express authority is conferred 
by statute such power does not exist. City of Aurora v. West, 9 Ind. 74 ; Thompson v. 
City of Peru, 29 Ind. 305; Mayor, etc., v. State, 57 Ind. 152: Indiana, etc., R. Co. v. 
City of Attica, 56 Ind. 476; Brocaw v. Board, etc., 73 Ind. 543; Pittsburg, etc., R. Co. 
V. Hardin, 137 Ind. 486; Lafayette, etc., R. Co. v. Geiger, 34 Ind. 185; State v. 
Wheadon, 39 Ind. 520 ; Scott v. Hansheer, 94 Ind. 1 ; Bittinger v. Bell, 65 Ind. 445 ; 
Hainer's Municipal Securities, §§138, 141; 2 Elliott Railroads, §814, et seq.; Elliott 
Roads and Streets, p. 63 ; 2 Beach on Conts., §§ 1178-1180. 

Incorporated city within township limits— Part of township.— For the purpose of 
a township tax in aid of a railroad, an incorporated city within the limits of a civil town- 
ship is a part of such township, the qualified voters of the city are voters of the town- 
ship, and the taxable property within the city is also taxable property within the town- 
ship and is subject to taxation for township purposes. Scott v. Hansheer, 94 Ind. 1. 

Railroad property— Taxation of in aid of railroad.— The property of a railroad 
company within a township which has voted a donation to aid in the construction of 
another and rival railroad therein, to be raised by a tax upon the property within the 
township, is subject to its share of the burden thus imposed. Pittsburg, etc., R. Co. 
V. Hardin, 137 Ind. 486. 

ARTICLE 11.— CORPORATIONS. 

SEC. 

38. General laws. 

38. General laws. — 13. Corporations, other than banking, shall not 
be created by special act, but may be formed under general laws. R. 
S. 1894, § 212. 

See ante, §§ 28 and 29. 

Provisions construed. — Section 13 of article 11 of the constitution means that after 
it took effect on November 1, 1851, the legislature should have no power or authority to 
G-reate, or regulate, or bring into existence by special act, a new corporation, where 
none had previously existed. City of Indianapolis v. Navin, 151 Ind. 139; Wiley v. 
Corp. of Bluffton, 111 Ind. 152. See Bank of Commerce v. Wiltsie, Ind. Sup. Ct., May 
23, 1899. 

This provision applies to municipal charters. Corporation of Bluffton v. Studabaker, 
106 Ind. 129, 131. See 1 Dillon Munic. Corp., 4th ed., §46. 

Power to create and power to reg"ulate corporations, — When a corporation has 
been created, a special act regulating it, without changing the organization of the cor- 
porate body, is not within the prohibition of the above section of the constitution. City 
of IndianapoUs t. Navin, 151 Ind. 139; Wilkins v. State, 113 Ind. 514. 

By the act of March 6, 1897 (Burns' Supp. 1897, §5458), amending section 9 of the 
act for the incorporation of street railroad companies of June 4, 1861, no new corporate 
power or franchise was created. The provision in said act respecting the fare to be 
charged and collected is a mere regulation of an existing corporation. Even if said 
act were local and special, it is not in conflict with the above section of the constitution. 

Even if said act were local, it is not special. Said act of 1897 by amending § 9 of the 



49 MUNICIPAL DEBT. § 39 

act of 1861, for the incorporation of street railroad companies, did no"t render Said last 
named act either local or special. City of Indianapolis v. Navin, 151 Ind. 139. Contray 
Central Trust Co. of New York v. Citizens' St. Ry. Co., 82 Fed. Rep. 1. See post, § 1341. 

Municipal corporation— Special charter— Amendment.— Where, prior to Novem- 
ber 1, 1851, a municipal corporation was created and organized under a special act, and 
such act was continued in force by the present constitution, the general assembly has 
power, by special act, to amend the act of incorporation, so as to enlarge the jurisdic- 
tion of the municipality territorially or otherwise. Wiley v. Corporation of Bluffton, 111 
Ind. 152; Wilkins v. State, 113 Ind. 514, 518. 

PoAver of legislature over.— Except as limitations are placed upon it by the consti- 
tution the legislature's power over municipal corporations is supreme. It may change, 
divide or abolish them at pleasure. 1 Dillon Munic. Corp., 4th ed., § 54. 

ARTICLE 13.— MUNICIPAL DEBT. 

SEC. 

39. Indebtedness limited — Excess void. 

39. Indebtedness limited — Excess void. — 1. No political or mu- 
nicipal corporation in this state shall ever become indebted, in any 
manner or for any purpose, to an amount, in the aggregate exceeding 
two per centum on the value of the taxable property within such cor- 
poration, to be ascertained by the last assessment for state and county 
taxes previous to the incurring of such indebtedness; and all bonds 
or obligations, in excess of such amount, given by such corporation, 
shall be void: Provided, That in time of war, foreign invasion, or 
other great public calamity, on petition of a majority of the property 
owners, in number and value, within the limits of such corporation, 
the public authorities, in their discretion, may incur obligations neces- 
sary for the public protection and defense to such an amount as may 
be requested in such petition. [Amendment, in lieu of four old sec- 
tions. Adopted March 14, 1881.] R. S. 1894, § 220. 

Provision construed. — Under this provision, every indebtedness incurred "in any 
manner, or for any purpose," is within the prohibition. City of La Porte v. Gamewell, 
etc., Co., 146 Ind. 466; Hainer's Municipal Securities, § 43. 

Indebtedness— What constitutes— Payment in installments — Indebtedness not 
created for ag'g'reg'ate sum. — When a municipal corporation contracts for a usual 
and necessary thing, such as water or light, and agrees to pay for it annually or monthly, 
as furnished, the contract does not create an indebtedness for the aggregate sum of all 
the installments, since the debt for each year or month does not come into existence 
until it is earned. The earning of each year's or month's compensation is essential to 
the existence of a debt. If the city can pay such indebtedness when it comes into ex- 
istence without exceeding the constitutional limit, there is no indebtedness, and there- 
fore no violation of the constitution. But if the indebtedness of the city already equals 
or exceeds the constitutional limit, and the current revenues are not sufficient to pay 
such indebtedness when it comes into existence, including other expenses for which 
the city is liable, an indebtedness is thereby created, and there is a violation of the 
constitution. City of Laporte v. Gamewell, etc., Co., 146 Ind. 466; Crowder v. Town 
of Sullivan, 128 Ind. 486 ; Poland v. Town of Frankton, 142 Ind. 546 ; City of Valparaiso 
V. Gardner, 97 Ind. 1; Seward v. Town of Liberty, 142 Ind. 551; 1 Dillon Munic. Corp., 
4th ed., § 136a; Hainer's Municipal Securities, § 43; 2 Beach Cont?., §§1171. 1104. 

Where the constitution of a state limits the amount of indebtedness which may be 
incurred by a municipal corporation, it is not within the power of the legislature to dis- 
pense with such limitation, either directly or indirectly. Lake County v. Graham, ISO 
CiT. AND To.— 4 



§ 39 CONSTITUTION OF STATE OF INDIANA. 50 

U. S. 675; Lake County v. Eollins, 130 V. S. 662; Doon Tp. v. Cummins, 142 U. S. 866; 
Buchanan v. Litchfield, 102 U. S. 278; Hainer's Municipal Securities, §§ 37, 38. 

Prohibited indebtedness incapable of ratification.— Indebtedness sought to be cre- 
ated by a municipal corporation in violation of a constitutional or statutory prohibition 
can not be ratified or validated by the corporation by resolution or otherwise. City of 
La Porte v. Gamewell, etc., Co., 146 Ind. 466; City of Indianapolis v. Wann, 144 Ind. 
175; Hainer's Municipal Securities, §339. 

Power of leg"islature to ratify. — When the legislature has the power to authorize 
the issue of bonds, and they have been issued by the municipal corporation wdthout 
authority, the legislature may validate the same, and may, by retroactive act, cure all 
irregularities in the issue of bonds issued under authority of law ; but it can not validate 
bonds issued in violation of constitutional provisions. Schneck v. City of Jefferson- 
ville, Ind. Sup. Ct., Dec. 20, 1898; Marks v. Trustees Purdue University, 37 Ind. 155; 
Hainer's Municipal Securities, §§ 321, 329, and cases; 2 Beach Conts., § 1178. — 

An act of the legislature legalizing an issue of bonds by a city has the same effect 
upon the validity of the bonds as if the authority had been conferred before the bonds 
were issued. If the bonds were issued prior to the constitutional amendment of 1881, 
and when power to issue the same might have been conferred by the legislature, but 
had not been, an act after 1881 legalizing the issue of bonds is valid, and does not cre- 
ate a debt prohibited by the constitution, though the debt created by such issue of bonds 
is in excess of the two per centum of the value of taxables. Schneck v. City of Jeffer- 
sonville, Ind. Sup. Ct., Dec. 20, 1898. 

Current revenue— Current expenses -Corporate debt— Limitation.— The items of 
expense essential to the maintenance of corporate existence, such as light, water, labor 
and the like, constitute current expenses, payable out of current revenues. Where the 
current revenues are sufficient to discharge all current expenses without increasing the 
indebtedness, there is no corporate debt incurred for such expenses. City of Valparaiso 
V. Gardner, 97 Ind. 1 ; City of La Porte v. Gamewell, etc., Co., 146 Ind. 466; Poland v. 
Town of Frankton, 142 Ind. 550 ; 2 Beach Conts., § 1171. 

Water supplj^ — Creation of debt. — While the power of a city to contract for a supply 
of water for public use is, in a general sense, a discretionary one, it can not be so exer- 
cised as to create a corporate debt beyond that limited by law, nor to surrender or sus- 
pend legislative power ; but the limitation in the constitution to the indebtedness of any 
political or municipal corporation does not apply to w^ater to be paid for as the water is 
furnished, provided the contract price can be paid from the current revenues as the 
water is furnished, without increasing the corporate indebtedness beyond the constitu- 
tional hmit, or encroaching upon funds set apart to other purposes. City of Valparaiso 
V. Gardner, 97 Ind. 1 ; Quill v. City of Indianapolis, 124 Ind. 292; City of New Albany 
V. McCullock, 127 Ind. 500. 

A municipal corporation may contract for a supply of water or gas, or a hke necessary, 
and may stipulate for the payment of an annual rental for the gas or water furnished 
each year, notwithstanding the aggregate of its rentals during the life of the contract 
may exceed the amount of the indebtedness limited by the charter. AValla Walla 
City V. Walla Walla Water Co., 172 U. S. 1. 

Fire alarm teleg-raph— Indebtedness— Llmitation.—The constitutional limitation of 
indebtedness is not violated by a city purchasing a fire alarm telegraph, when there is 
money on hand and appropriated for fire purposes sufficient to pay the cost thereof, 
although the city is already indebted for more than the constitutional amount, and it 
may not be a wise thing for the common council to expend the fire appropriation in this 
way. Brashear v. City of Madison, 142 Ind. 685. 

Same, — A^Tiere a municipal corporation at the time of entering into a contract for a 
fire alarm telegraph system was indebted in excess of the constitutional limit, and had 
not sufficient money in the treasury, either at the time of entering into said contract, or 



51 MUNICIPAL DEBT. § 39 

at the time of the completion and acceptance of the work, to pay for the same, such con- 
tract was in violation of the constitution and the indebtedness invalid. City of La Porte 
y. Gamewell, etc., Co., 146 Ind. 466. 

Contracts for future supplies.— Cities are not prohibited by the constitutional pro- 
vision limiting indebtedness, from entering into contracts for the furnishing of neces- 
sary articles to the city in the future and which are to be paid for as furnished, out of 
the current revenues, although the aggregate amount to be paid for such articles will 
exceed the limit of indebtedness. City of Valparaiso v. Gardner, 97 Ind. 1, 9. 

Current expenses — Injunction. — A city, being indebted to an amount equal to two 
per centum of its taxable property, is prohibited from issuing an order on its treasurer 
even for current expenses, where there are no funds in the treasury which may be ap- 
plied to its payment, and may be enjoined from issuing such an order when one is about 
to be issued and no provision has been made for its payment. Sackett v. City of New 
Albany, 88 Ind. 473, 476 ; 2 Beach Conts., § 1171. 

Injunction — Insufficient complaint.— A complaint alleged that a city had agreed to 
pay five thousand dollars for a fire-alarm system ; that its indebtedness already exceeded 
the two per cent, limit fixed by constitution, article 13, § 220, R. S. 1894; that it had 
been compelled to borrow money to pay current expenses ; that the revenue from taxes 
for the current year would not exceed fifty thousand dollars; that, of this sum, appro- 
priations of forty-four thousand dollars had been made, including an item, "fire, six 
thousand dollars ;" and that twenty -two thousand dollars of the appropriations had been 
expended. Such complaint failed to show that there was not money in the treasury, or 
to be received from the taxes, out of which the five thousand dollars could be paid as a 
current expense, without becoming an indebtedness in violation of the constitutional 
limitation. Brashear v. City of Madison, 142 Ind. 685. 

For services rendered. — Although the debt of a city may be as much as allowed by 
the constitution, yet such fact will not invalidate a contract made with the city for serv- 
ices to be rendered in compromising or contesting any part of such indebtedness. City 
of Logansport v. Dykeman, 116 Ind. 15, 21. 

Constitutional and statutory limitations disting-uished.-The rule which applies to 
a constitutional limitation is not usually applicable when the limitation is only statu- 
tory. When the limitations are imposed by the constitution it may not be wdthin the 
power of the legislature to dispense with them by the creation of a ministerial commis- 
sion whose findings shall be taken in lieu of the facts ; but, when the limitations are 
imposed by the statute only, the legislature being the source of the limitation, may 
create a board authorized to determine the questions of fact upon which the limitation 
depends, and its findings will be conclusive in favor of bona fide purchasers of bonds. 
Chilton V. Town of Gratton, 82 Fed. Rep. 873; Sherman Co. v. Simons, 109 U. S. 735; 
Lake Co. v. Graham, 130 U. S. 674; Board of Comm'rs v. Howard, 83 Fed. Rep. 296; 1 
Dillon Munic. Corp., 4th ed., §§523-529a; 2 Elliott Railroads, §888. 

Limitation of indebtedness— Bonds.— Bonds issued in violation of a constitutional 
limitation upon the power of a municipal corporation to incur indebtedness are void ; 
the legislature can not confer upon a municipal corporation power to contract indebted- 
ness which is expressly forbidden by the constitution. Buchanan v. Litchfield, 102 
U. S. 278; 1 Dillon Munic. Corp., §529a. 

A constitutional provision that no city, etc., "shall be allowed to become indebted in 
any manner or for any purpose to an amount, including existing indebtedness, in the 
aggregate exceeding five per centum on the value of its taxable property," forbids the 
incurring of any pecuniary liability, in any manner, for any purpose, by bonds, notes 
or express or imphed promises, in excess of the per centum stated. Holders of bonds 
issued in violation of such provision can not recover the proceeds thereof received and 
enjoyed by the city, either by a suit in equity nor by an action at law for money had 
and received. Litchfield v. Ballou, 114 U. S. 190. 



§ 39 CONSTITUTION OF STATE OF INDIANA. 52 

While recitals in bonds issued under legislative authority may estop the municipality 
from disputing their vahdity, as against a bona fide holder for value, when the mu- 
nicipal bonds are issued in violation of a constitutional provision, no such estoppel can 
arise by reason of any recitals contained in the bonds. Hedges v. Dixon County, 150 
U. S. 182; Lake Co. v. Kollins, 130 U. S. 662; Lake Co. v. Graham, 130 U. S. 674; Sutliff 
V. Commissioners, 147 U. S. 230; Nesbit v. Eiverside Independent Dist., 144 TJ. S. 611 ; 
1 Dillon Munic. Corp., 4th ed., § 529a r 2 Ehiott Railroads, §888. 

Municipal bonds issued in violation of a constitutional limitation upon indebtedness 
are void. When the constitution provides that no political or municipal corporation 
shall be allowed to become indebted to an amount in the aggregate exceeding a certain 
per centum of the value of the taxable property within such corporation, etc., purchasers 
of bonds are bound to take notice of the value of the taxable property. Nesbit v. River- 
side Independent Dist., 144 U. S. 611; Buchanan v. Litchfield, 102 U. S. 278; North 
Bank v. Porter Township, 110 U. S. 608; Dixon County v. Field, 111 U. S. 83. 

May issue funding" bonds. — The constitutional provision limiting the power of cities 
to create indebtedness does not prohibit cities from issuing bonds to fund the indebted- 
ness and interest thereon that existed at the time of the adoption of such provision. 
Powell V. City of Madison, 107 Ind. 106, 114; City of Logansport v. Dykeman, 116 Ind. 
15, 22; Myers v. City of Jeffersonville, 145 Ind. 431; Schneck v. City of Jeffersonville, 
Ind. Sup. Ct., Dec. 20, 1898. 

The only effect which the adoption of article 13 of the state constitution, § 220, R. S. 
1894, had upon §§ 4199,4200, R. S. 1894 {post, §§ 1001, 1002), which provide for the funding 
of the indebtedness of cities and towns, was to limit their application to debts contracted 
prior to March 14, 1881, and to such as have been since incurred, not in excess of the 
two per centum limit upon the value of their taxable property. Powell v. City of Madi- 
son, 107 Ind. 106, 114. 

If a municipal corporation owes a valid and enforcible indebtedness, refunding 
bonds issued under authority of an act of the legislature for the purpose of taking up 
such enforcible indebtedness, are not invalid because they may exceed the per cent, 
limitation. /Etna Life Ins. Co. v. Lyon County, 44 Fed. Rep. 329; Cofiin v. City of In- 
dianapolis, 59 Fed. Rep. 221. 

Bonds for school-house. — A town can not under this provision of the constitution 
issue bonds to obtain funds with which to rebuild a school-house when the issuance of 
the bonds will create a debt in excess of two per centum of the taxable value of the 
property within the corporate limits of the town. Town of AVinamac v. Huddleston, 
132 Ind. 217; Wilcoxon v. City of Bluffton, Ind. Sup. Ct., June 14, 1899. 

Contract for school-house. — If a town contract for the building of a school-house, 
and the contract price raise the indebtedness beyond the constitutional limit, the ex- 
cess of indebtedness is void, but so much of the contract price as is within the eonstitu- 
tional limit is valid. School Town of Winamac v. Hess, 151 Ind. 229. 

Street improvement bonds.— The bonds authorized to be issued under the act of 
March, 1889, §4296, R. S. 1894 {post, § 1115), to raise money to pay for street improve- 
ments are not debts of a corporation within the meaning of the provision of the constitu- 
tion limiting the amount of indebtedness of municipal corporations. Quill v. City of 
Indianapohs, 124 Ind. 292. 

Oblig-ation— Payable out of particular fund,— Obligations payable out of a particular 
fund, and for which the fund only, and not the corporation, is liable, are not within 
the inhibition of the constitution. Board, etc., v. Harreli, 147 Ind. 500 ; City of La Porte 
V. Gamewell, et€., Co., 146 Ind. 466; Quill v. City of Indianapohs, 124 Ind. 292; Strieb 
V. Cox, 111 Ind. 299; Hainer's Munic. Securities, § 43. 

Streets— Repairs— Indebtedness— Injuries.— In an action to recover for an injury in 
consequence of a defective sidewalk, an answer alleging that the city was indebted up 
to the constitutional hmit, and had no funds available for the repair of its streets and 



53 MISCELLANEOUS. § 40 

sidewalks, presents no defense, since a city has power under §§ 3624, 3627, 3628, R. S. 
1894 (post, §§219, 222, 223), to repair its streets and sidewalks at the expense of ad- 
jacent property owners. City of New Albany v. McCnlloch, 127 Ind. 500, 503. 

Assessment for street improvement.— The question whether a city is liable for its 
proportion of cost of a street improvement when it is already indebted beyond the con- 
stitutional hmit does not affect the liability of a property holder in a suit to enforce pay- 
ment of his share of the assessment. Hughes v. Parker, 148 Ind. 692. 

City and township— Separate corporations— Township aid to railroads.— The city 
is an integral part of the township in which it is situated, but it is not the township, nor 
is the township the city. They are distinct corporations. It is no impediment to grant- 
ing aid to a railroad by a township that it includes a city which is in debt to the extent 
permitted by the constitution. Irwin v. Lowe, 89 Ind. 540. 

ARTICLE 15.— MISCELLANEOUS. 

SEC. SEC. 

40. Official appointments. 43. Official oath. 

41. Duration of office. 44. Public grounds. 

42. Officer holding over. 

4:0. Official appoiutments. — 1. All officers whose appointments 
are not otherwise provided for in this constitution shall be chosen in 
such manner as now is, or hereafter may be, prescribed by law. R. 
S. 1894, § 223. 

See ante, §27. 

Mnnicipal corporations— Local self-g^overnment— Appointment to office— Power 
of leg'islatnre. — The right of local self-government in towns and cities was not sur- 
rendered upon the adoption of the constitution, but is still vested in the people of the 
respective municipalities, and the legislature can not appoint officers to administer mu- 
nicipal affairs, its power ending with the enactment of laws prescribing the manner of 
the section and the duties of the officers. State v. Denny, 118 Ind. 449; State v. Denny, 
118 Ind. 382; City of Evansville v. State, 118 Ind. 426; State v. Kolsem, 130 Ind. 434. 
See State v. Peelle, 121 Ind. 495; State v. Gorby, 122 Ind. 17; French v. Harley, 141 
Ind. 618; Hovey v. State, 119 Ind. 395; State v. Hyde, 121 Ind. 20; State v. Haworth, 
etc., 122 Ind. 462; State v. Mount, 151 Ind. 679. 

This section is to be construed in the light of the laws in force at the time the consti- 
tution vras adopted, and seems to limit the power of the legislature to such appoint- 
ments as it might make under those laws. The power to provide by law the manner 
or mode of making an appointment to a new office created by the legislature does not 
include the power to make the appointment itself. State v. Denny, 118 Ind. 382; State 
V. Hyde, 121 Ind. 20, 36; State v. Gorby, 122 Ind. 17, 23. 

Appointment when no vacancy.— An appointment to fill a vacancy in an office is 
void when there is no vacancy. Kimberlin v. State, 130 Ind. 120, 126. 

Officers— Selection from classes.— The legislature can not divide citizens into 
classes, such as a residence for a certain period of time, or that of being a member of a 
political party, and require that certain officers shall be elected from such classes. City 
of Evansville v. State, 118 Ind. 426; State v. Denny, 118 Ind. 449; State v. Blend, 121 
Ind. 514. 

Board of public works,— The act of March 8, 1889 (Acts 1889, p. 247), assuming to 
give the exclusive control of streets, alleys, sewers, lights, water supply, etc., in cities 
of more than fifty thousand inhabitants, to boards of pubhc works to be chosen by the 
legislature from residents of the cities affected, is void, as denying the right of local self- 
government. State V. Denny, 118 Ind. 382. 



§41 CONSTITUTION OF STATE OF INDIANA. 54 

Fire department.— The right to provide and maintain a tire department in towns 
and cities is vested in the inhabitants of the respective municipalities, as an element of 
local self-government, and is not subject to legislative interference, except in so far as 
tlie general assembly may prescribe rules to aid the people in the exercise of such right. 
State V. Denny, 118 Ind/449, 469. 

Police and lire department.— The act of March 7, 1889 (R. S. 1894, § 3701, et seq.), 
creating a board of metropolitan police and fire department in cities having a certain 
population, providing for the election of the first commissioners by the legislature, and 
giving them exclusive control of the police and fire departments of such cities and of 
matters connected therewith, is void, in so far as it relates to the fire department, as 
being in violation of the right of local self-government ; and as the provisions of the act 
in relation to the police department are so connected with and dependent upon its other 
provisions as to be practically inseparable, the whole act falls. State v. Denny, 118 
Ind. 449, 476. 

Police and fire commissioners. — The power to appoint certain officers of the state is 
reserved to the legislature, but that department has no authority to appoint local 
oflicers, whether county, township, city or town, and the act of March 7, 1889 (Acts 
1889, p. 222), assuming to confer upon it the authority to appoint police and fire com- 
missioners for cities, is void. City of Evansville v. State, 118 Ind. 426. 

Board of police — Constabulary. — In providing for the appointment of officers con- 
nected with the constabulary of the state, there is no invasion of the right of local self- 
government, but simply the exercise of the power to provide for the selection of peace 
officers of the state. State v. Blend, 121 Ind. 514; State v. Kolsem, 130 Ind. 434,436; 
City of Evansville v. State, 118 Ind. 426; State v. Denny, 118 Ind. 449. 

Municipal board of police. — The legislature has the power to provide for the appoint- 
ment of a municipal board of police, and the act of 1891 (Acts 1891, p. 90) is constitu- 
tional. State V. Kolsem, 130 Ind. 434. 

The act of the legislature of 1883 (R. S. 1894, § 3717, et seq.), creating a board of met- 
ropolitan police in all cities of twenty-nine thousand inhabitants or more, and provid- 
ing for the appointment of such board by the governor and certain other state of- 
ficers is valid, except in so far as it makes a residence of three years in the city a con- 
dition of eligibility, and provides for the appointment of officers named in § 2 equally 
from the two leading political parties. State v. Blend, 121 Ind. 514. 

41. Duration of office. — 2. When the duration of any office is not 
provided for by this constitution, it may be declared by law; and if 
not so declared, such office shall be held during the pleasure of the 
authority making the appointment. But the general assembly shall 
not create any office the tenure of which shall be longer than four 
years. R. S. 1894, § 224. 

Creation of office— Tenure.— It is not the tenure of more than four years that is pro- 
hibits by this provision of the constitution, but it is the creation of an office the tenure 
oi which shall be longer than four years. The forbidden act is the creation of an office 
of the particular description given as much as the inhibition of more than four years 
tenure. The creation of an office with a tenure of more than four years is void. Indi- 
anapolis Brewing Co. v. Claypool, 149 Ind. 193. 

The pi-ovision of this section that "the general assembly shall not create any office, 
the tenure of which shall be longer than four years," has no application to a case where 
an office is created of which no tenure is fixed. Clem v. State, 33 Ind. 418. 

This provision can not be construed so as to prevent an officer from holding over un- 
til his successor is elected and qualified pursuant to the provisions of the following sec- 
tion. State V. Harrison, 113 Ind. 434. See Aikman v. State, Ind. Sup. Ct., May 18, 
1899. 

The legislature may fix tlie time for the commencement of a term of uifice when the 



55 MISCELLANEOUS. § 42 

same is not fixed by the constitution. Scott v. State, 151 Ind. 556 ; State v. Harris, Ind. 
Sup. Ct., Dec. 16, 1898. 

4:2. Officer holding oyer, — 3. Whenever it is provided in this 
constitution, or in any law which may be hereafter passed, that any 
officer, other than a member of the general assembly, shall hold his 
office for any given term, the same shall be construed to mean, that 
such officer shall hold his office for such term, and until his successor 
shall have been elected and qualified. R. S. 1894, § 225. 

Office— Termination of — Vacancy— Holding* over.— The term of an officer ends 
when his successor qualifies, whether he actually assumes the duties of the office or not. 
Steinback v. State, 38 Ind. 483. 

A person is not "elected and qualified" to succeed his predecessor in office until the 
time fixed by law arrives when his term is to begin, though he may have given bond and 
taken the oath of office. Scott v. State, 151 Ind. 556. 

"Where an officer is lawfully elected and in the possession of an office, his right to hold 
over continues, as a general rule, until a qualified successor has been elected. Kimber- 
Hn V. State, 130 Ind. 120; State v. Bogard, 128 Ind. 480; State v. Harrison, 113 Ind. 
434; Baker v. Kirk, 33 Ind. 517; Elam v. State, 75 Ind. 518; Gosman v. State, 106 Ind. 
203; School Town of Milford v. Powner, 126 Ind. 528; Koerner v. State, 148 Ind. 158; 
Scott V. State, 151 Ind. 556 ; State v. Harris, Ind. Sup. Ct., Dec. 16, 1898. 

Where one is elected to an office, qualifies by taking the oath required by law, and 
dies before his term begins, his predecessor can not hold over. State v. Bemenderfer, 
96 Ind. 374; Gosman v. State, 106 Ind. 203, 206. 

The word ''vacancy," as applied to an office, has no technical meaning, but an office 
is vacant or not according to whether it is occupied by one who has a legal right to 
hold it and to exercise the powers and perform the duties pertaining thereto. State 
V. Harrison, 113 Ind. 434. 

This provision of the constitution applies to officers elected by the legislature as well 
as to those elected by the people. State v. Harrison, 113 Ind. 434. 

The provision of §2, art. 15 of the constitution, that "the general assembly shall not 
create any office the tenure of which shall be longer than four years," does not affect 
the right of an officer, elected by the general assembly for a term of four years to an 
office of legislative creation, to hold over as provided in this section. State v. Harrison, 
113 Ind. 434. 

No vacancy occurs in an office where the person elected to fill it dies before he quali- 
fies, or dies after the polls are closed and before the result is ascertained. In such case 
the predecessor holds over. Kimberlin v. State, 130 Ind. 120. 

If a person has held an office for the time that one person can successively hold 
under the constitution, he can not hold over at the end of such time. Gossman v. State, 
106 Ind. 203.; Aikman v. State, Ind. Sup. Ct., May 18, 1899. 

But where the office is not a constitutional office, but the creature of the legislature, 
under the provisions of the act of March 11, 1889 (R. S. 1894, §§8066, 8067), a person 
who had held the office of township trustee for two terms consecutively at the date of a 
township election, was entitled to hold over until his successor was duly elected and 
quahfied, though ineligible to hold the office by virtue of a new election. State v. 
Bogard, 128 Ind. 480. 

43. Official oath. — 4. Every person elected or appointed to any 
office under this constitution shall, before entering on the duties 
thereof, take an oath or affirmation to support the constitution of this 



§ 44 CONSTITUTION OF STATE OF INDIANA. 56 

state and of the United States, and also an oath of office. R. S. 
1894, § 226. 

44, Public grouuds.— 9. The following grounds owned by the 
state, in Indianapolis, namely : The state house square, the gover- 
nor's circle, and so much of out-lot numbered one hundred and forty- 
seven as lies north of the arm of the central canal, shall not be sold or 
leased. R. S. 1894, § 231. 

R. S. 1894, § 235. SCHEDULE. 

SEC. 

45. When constitution takes effect. 

CLAUSES. 

1. Laws continued. 
4. Municipal acts continued. 
16. Clarksville. 

45. When constitution takes effect. — This constitution, if adopted, 
shall take effect on the first day of November, in the year one thousand 
eight hundred and fifty-one, and shall supersede the constitution 
adopted in the year one thousand eight hundred and sixteen. That 
no inconvenience may arise from the change in government, it is here- 
by ordained as follows: 

1. Laws continued. — All laws now in force, and not inconsistent 
with this constitution, shall remain in force until they shall expire or 
be repealed. 

****** tT-**** 

4. Municipal acts continued. — All acts of incorporation for mu- 
nicipal purposes shall continue in force under this constitution until 
such time as the general assembly shall, in its discretion, modify or 
repeal the same. 

*********** 

16. Clarksyille.— The general assembly may alter or amend the 
charter of Clarksville, and make such regulations as may be necessary 
for carrying into effect the objects contemplated in granting the same; 
and the funds belonging to said town shall be applied according to the 
intention of the grantor. R. S. 1894, § 235. 

Municipal charters— Contlmiance of— Modification and repeal.— Under the fourth 
clause of this section all acts for the incorporation of cities and toY/ns in force at the 
time of the adoption of the constitution were continued in full force after the constitu- 
tion took effect ; but full power and authority were conferred on the general assembly 
to either modify or repeal such acts of incorporation. Corporation of Bluffton v. Studa- 
baker, 106 Ind. 129 ; Warren v. City of Evansville, 106 Ind. 104. 

Under this clause municipal charters may be amended or modified so as to enlarge 
the corporate powers. Warren v. City of Evansville, 106 Ind. 104; Wiley v. Corpora- 
tion of Bluffton, 111 Ind. 152. 

Special charters. — INIay be amended by special or general acts. City of Evansville 
V. Summers, 108 Ind. 189 ; Eichels v. Evansville, etc., Co., 78 Ind. 261 ; City of Evansville 
V. Bayard, 39 Ind. 450; Wiley v. Corporation of Bluffton, 111 Ind. 152; Warren v. City 
of Evansville, 106 Ind. 104; Corporation of Bluffton v. Studabaker, 106 Ind. 129. 

Clarksville— The rig-ht to re-incorporate.— The right given to towns to re-incor- 
porate, by E. S. 1894, § 4338 (see post, § lisn. is still effective as to the town of Clarks- 



57 GENERAL NOTES. § 45 

ville, not\nthstanding the act of March 3, 1883, repealing certain amendatory acts of 
the charter of said town, and pertaining to the incorporation of towns on the out-lots of 
Clarksville. State v. Hertsch, 136 Ind. 293, 296. 

The statutes of Virginia and the patent for ** Clarke's Grant" are set out in the first 
edition of 1 Blackford, in the appendix, p. 443. See also Hughes v. Trustees of Clarks- 
ville, 6 Peters 369. 

For the historical facts concerning the grant, see, also, Carr v. McCampbell, 61 Ind. 
97; Henthorn v. Doe, 1 Blackf. 157; Ewing v. Trustees, etc., 61 Ind. 129; Frisbie v. 
Trustees, etc., 78 Ind. 269; Davis v. Fogg, 78 Ind. 301. 

Incorporation of part of town— Town of Ohio Falls— Case overruled.— Under the 
act of June 17, 1852, amendatory of the charter of the town of CI arks ville, etc., it was 
incompetent for any portion of the town of Clarksville to organize itself into an inde- 
pendent town ; and therefore the organization of part of such town under the corporate 
name of the Town of Ohio Falls was void. St. Clair v. Kelley, 50 Ind. 535, overruled ; 
Carr v. McCampbell, 61 Ind. 97. 

CONSTITUTIONAL AND STATUTORY INTERPRETATION. 

General Notes. 

Statutes. — A statute may be unconstitutional in part and valid as to the residue. 
Taggart v. Claypool, 145 Ind. 590 ; City of IndianapoHs v. Bieler, 138 Ind. 30. 

Same — Elimination. — If the unconstitutional portions of a statute can be stricken 
out, and still leave a complete statute, the unconstitutional portions must be regarded 
eliminated, and the remainder of the statute must be enforced. State v. Bland, 121 Ind. 
514; Taggart v. Claypool, 145 Ind. 590; City of Indianapolis v. Bieler, 138 Ind. 30; State 
V. Gorby, 122 Ind. 17; County Board, etc., v. State, 148 Ind. 675. 

Where any provision of an act is invalid it may be stricken out, but courts have other- 
wise no right to add to or take from the law as it is written, or to extend the meaning 
of the law beyond that which is written, when the meaning is clear. Questions of pol- 
icy and political morals are matters for the consideration of the legislature, and are not 
for the courts. County Board, etc., v. State, 148 lud. 675. 

*'A municipality is a governmental agency; its functions are for the public good, 
and the powers given to it, and to be exercised by it, must be construed with reference 
to that good and to the distinctions which are recognized as important in the adminis- 
tration of public affairs." Citizens' Street R. Co. v. Detroit R., 171 U. S. 48. 

Rules g-overning" adjudication. — Courts are reluctant to declare acts of the legisla- 
ture unconstitutional, and, in passing upon such a question, are governed by the following 
rules : (1) A court will never decide a question involving the constitutionality of a stat- 
ute, if the merits of the case in wdiich it is involved can be determined without such de- 
cision; and (2), a court will never declare a statute unconstitutional where there is any 
doubt upon the subject. Parker v. State, 133 Ind. 178, 390; Harmon v. Board, etc., 
Madison County, Ind. Sup. Ct., June 16, 1899. 

Statutes must be upheld if possible.— A statute must be construed so as to uphold it, 
if that be fairly possible; and if it be of doubtful constitutionality, the doubts are to be 
resolved in favor of the enactment. McComas v. Krug, 81 Ind. 327, 332; Campbell v. 
Dwiggins, 83 Ind. 473, 480; Warren v. Britton, 84 Ind. 14, 22; Hays v. Tippy, 91 Ind. 
102, 105; Robinson v. Schenck, 102 Ind. 307, 319; Riggs v. State, 104 Ind. 261, 264; Phe- 
nix Ins. Co. v. Burdett, 112 Ind. 204, 206; Wilkins v. State, 113 Ind. 514, 516; State v. 
Insurance Co., 115 Ind. 257; State v. Denny, 118 Ind. 382, 394, 412. 

Amending" an amendment. — An act professing to amend a section of a statute which 
has already been superseded by amendment is unconstitutional and void. Brocaw v. 
Board, etc., 73 Ind. 543, 550; Lawson v. DeBolt, 78 Ind. 563, 566; Mclntyre v. :\Iarine, 
93 Ind. 193, 199; Hall v. Craig, 125 Ind. 623, 529; Eversole v. Chase, 127 Ind. 297, 300. 

Amendment supersedes original.— Where a statute, or an act, has been amended or 
repealed, it no longer exists and is superseded by the amended section or act. Feible- 



§ 45 CONSTITUTION OF STATE OF INDIANA. 58 

man v. State, 98 Ind. 516, 518; Fuller v. Cox, 135 Ind. 46, 47; Eobinson v. City of Val- 
paraiso, 136 Ind. 616, 622; State v. Brugh, 5 App. 592, 594. 

Unconstitutional statute— Injunction.— Courts of equity have jurisdiction to hear 
the complaint of those who assert that their lands are about to be assessed and sub- 
jected to liens by a board or commission, acting in pursuance of the provisions of a 
statute which has been enacted under the forms of law, but which is unconstitutional, 
and therefore does not avail to confer the powers sought to be exercised. Craighill v. 
Lambert, 168 U. S. 611; Dows v. Chicago, 11 Wall. 108; Eailway Co. v. Cheyenne, 113 
U. S. 516; Ogden City v. Armstrong, 168 U. S. 224; 2 Dillon Munic. Corp., 4th ed., 
§922. 

Constitutionality of statute— Waiver.— In an action for the enforcement of a statu- 
tory lien, where an appeal is taken to the supreme court, and the question as to the 
constitutionality of the statute is not raised in that court, and the appeal is transferred 
by that court to the appellate court, the question as to the constitutionality of the statute 
is deemed waived. Lewis v. Albertson, Ind. App. Ct., May 24, 1899. 



INDIANA STATUTES. 



CHAPTER 1. 
CITIES. 



ART. 

1. ixcorporatiox axd organization, 

2. Government and powers. 

3. Taxation. 

4. Improvement of streets. 



5. 


Opening and vacation of streets. 


11. 


6. 


Annexation of territory. 


12. 


7. 


Fire department. 

ARTICLE 1.— INCORPORA' 


13. 

noN 


SEC. 




SEC. 


46. 


Petition— Order for census. 


72. 


47. 


Marshal's assistants— Return. 


73. 


48. 


Notice of election. 


74. 


49. 


Election board. 


75. 


50. 


Manner and return of election. 


76. 


51. 


Town becomes city— Record conclu- 


77. 




sive. 


78. 


52. 


Notice of election. 




53. 


Wards, division of cities into — Vot- 


79. 




ing precincts. 


80. 


54. 


Ordinance creating wards — Notice. 


81. 


55. 


Old cities may adopt this act. 


82. 


56. 


Acquired rights — Interest on orders. 




57. 


Old ofiBcers and ordinances. 


83. 


58. 


Duties of common councils in towns. 




59. 


City officers. 


84. 


59a 


. City attorney — City engineer — Re- 


85. 




moval. 


86. 


60. 


Oath of election boards. 


87. 


61. 


Law of city elections. 


88. 


62. 


Canvass of votes. 


89. 


63. 


Inspector's certificate. 


90. 


64. 


Notice to persons elected. 


91. 


65. 


Penalty for refusal to serve. 


92. 


66. 


Vacancies. 


93. 


67. 


Vacancies — How filled. 


94. 


68. 


Term of appointee. 


95. 


69. 


Cities of fifteen thousand voters. 


96. 


70. 


Councilmen. 


97. 


71. 


Aldermen. 


98. 




(59) 



ART. 

8. City courts. 

9. Board of public works. 

10. Metropolitan police and fire de- 
partment. 
Humane inspector. 
Park commissioners. 
Cities of seventy thousand. 



Legislation— Elections. 

Separate action. 

Officers— Election . 

President of board. 

Records— Journal. 

Pay of members. 

President of board, when acting 
mayor. 

Sewer tax and districts. 

Mayor's duties and powers. 

Docket fees — Vacancies. 

Suits by city, what averments un- 
necessary. 

Suits against railroads — Process — 
Judgment. 

Actions for penalties. 

Imprisonment — Stay. 

Clerk's duties — Evidence— Fees. 

Orders — Clerk's duties. 

Duplicate tax list. 

Assessor's duties. 

Assessor's duties. 

Civil engineer's duties. 

Street commissioner's duties. 

Marshal's duties and powers. 

Has constables' powers. 

Same fees as constables. 

City attorney's duties and fees. 

Treasurer's duties. 

Duties of treasurer and clerk. 



§ 46 CITIES. 60 

SEC. SEC. 

99. Treasurer's duties— Interest. 106. Sale of land for taxes. 

99a. Treasurer's duties— Interest. 107. Notice of sale of chattels. 

100. Interest— Orders receivable. 108. Chattels at auction. 

101. Treasurer's statements and liability. 109. Land, how sold. 

102. Treasurer's assessments. 110. Eeturn of land sold— Redemption. 

103. Collecting delinquent taxes 111. Annual settlement. 

104. Lien of taxes. 112. Fees on forfeited lands. 

105. Collecting taxes. 113. Oath— Bonds. 

[1869 S., p. 30. In force April 28, 1869.] 

46. Petition — Order for census. — 1. Whenever one-third of the 
voters of any incorporated town, so far as the number can be esti- 
mated, shall petition the board of trustees thereof or common council 
of any incorporated city to be incorporated as a city under this act, 
such board of trustees or common council, b}^ an order or resolution 
to that effect entered on their order book, shall direct the marshal or 
other officer thereof by a proper warrant, furnishing him with the 
necessary forms, to take the census of all persons who were residents 
within the corporate limits of such city or town at least forty days an- 
terior to the date of such order: Provided, however, That if it shall ap- 
pear to said board of trustees or common council, by the last census of 
this state or of the United States, or by any enumeration made by the 
order of the board of trustees or common council of said city or town, 
within two years from the date of the receipt of such petition, that said 
town or city had two thousand five hundred inhabitants, said board of 
trustees or common council shall be at liberty to proceed in all respects 
as though the said census had been taken in the manner provided by 
this act. R. S. 1894, § 3462. 

The act in reference to the incorporation of cities, approved March 14, 1867 (of which 
this section is an amendment), repealed the act of December 20, 1865, though in the 
repealing section the year in which the act repealed is said to have been approved is 
given as 1863 instead of 1865, the title of the act repealed being correctly recited. 
McNulty V. Connew, 50 Ind. 569. 

Act constitutional. — The general law of 1857 for the incorporation of cities was not 
unconstitutional for want of uniformity in the mode of organization. City of Lafay- 
ette V. Henners, 10 Ind. 70. 

Amendment — Repeal. — The charter of a municipal corporation may be amended or 
repealed at the pleasure of the legislature. Sloan v. State, 8 Blackf . 361 ; City of In- 
dianapolis V. Indianapolis Home, etc., 50 Ind. 215; Lucas v. Board, etc., 44 Ind. 524; 
Eichels v. Evansville, etc., 78 Ind. 261, 263; Warren v. City of Evansville, 106 Ind. 
104, 107; Corporation, etc., v. Studabaker, 106 Ind. 129, 131; City of Evansville v. 
Summers, 108 Ind. 169; Wiley v. Corporation of Bluffton, 111 Ind. 152, 156; State v. 
Kolsem, 130 Ind. 434, 437 ; 1 Beach Pub. Corp., § 92, et seq. ; 1 Dillon Munic. Corp., 4th 
ed., § 63 ; 2 Beach Conts., § 1133. 

Special charters may be amended by either general or special acts. City of Evans- 
ville v. Summers, 108 Ind. 189; City of Evansville v. Bayard, 39 Ind. 450; Eichels v. 
Evansville, etc., R. Co., 78 Ind. 261; Wiley v. Corporation of Bluffton, 111 W. 152; 
Warren v. City of Evansville, 106 Ind. 104; Corporation of Bluffton v. Studabaker, 106 
Ind. 129. 



61 INCORPORATION AND ORGANIZATION. § 46 

Intention. — "Where the intention of the legislature is to apply an act to cities organ- 
ized under special charters as well as to those incorporated under general laws, that in- 
tention will govern, and the act will be deemed the law, not only of one class, but of 
all. Eichels v. Evansville, etc., Co., 78 Ind. 261. 

Leg'alizing' act — Irreg'nlarities in the organization of cities may be cured by legal- 
izing acts. Mullikin v. City of Bloomington, 72 Ind. 161. 

Municipal corporation defined.— A municipal corporation is a body corporate and 
politic, created by the law and invested with special powers relating particularly to the 
•government of its own local affairs. Vaughtman v. Town of Waterloo, 14 App. 650; 
1 Dillon's Munic. Corp., 4th ed., § 20. 

Cities — Towns. — The w^ord "town," as used in the constitution of the state, and in 
some statutes, is generic, and includes cities. City of Indianapolis v. Higgins, 141 Ind. 
1 ; Flinn v. State, 24 Ind. 286; State v. Craig, 132 Ind. 54; State v. Denny, 118 Ind. 449; 
Harvey v. Osborn, 55 Ind. 535. 

A town is not always a city, but it is said that a city is always a town. Harvey v. 
Osborn, 55 Ind. 535. 

Coi'poration — ^^'hat constitutes. — The inhabitants of the territory embraced wdthin 
the corporate limits, and not the officers, constitute the corporation. City of Valpa- 
raiso V. Gardner, 97 Ind. 1, 6; Strosser v. City of Ft. Wayne, 100 Ind. 443, 449; Baum- 
gartner V. Hasty, 100 Ind. 575, 585; Platter v. Board, etc., 103 Ind. 360, 381; Vogel v. 
Brow^n Tp., 112" Ind. 299, 300; Citizens', etc., Co. v. Elwood, 114 Ind. 332, 336. 

Sovereig"n powers— Legislative and judicial. — For the purposes of its creation, a 
municipal corporation is a government with sovereign powers, legislative and judicial, 
to a limited extent. Exercise of such powers, within the limits prescribed by law cre- 
ating them, is within the discretion of the properly constituted authorities of such cor- 
poration ; and error in exercising, or failure to exercise such powers, does not render a 
corporation liable to a suit. Brinkmeyer v. City of Evansville, 29 Ind. 187; City of 
Lafayette v. Timberlake, 88 Ind. 330; Falkner v. City of Aurora, 85 Ind. 131; Sweet v. 
City of Wabash, 41 Ind. 7, 18; Kistner v. City of Lafayette, 100 Ind. 210. 

A municipal corporation is not liable for failure to exercise governmental powers, as 
for failure to enforce the state laws or its own ordinances ; to provide appliances for ex- 
tinguishing fires ; to supply an adequate force of police officers ; to undertake a munici- 
pal work, such as supplying a system of drainage, etc. City of Lafayette v. Timber- 
lake, 88 Ind. 330; Eobinson v. City of Evansville, 87 Ind. 334. 

Tested rig^ht in office or property. — A municipal corporation is not clothed with any 
vested right in a public office, nor does it possess a vested right in public property ; and 
in transferring property and authority from one class of officers to another no vested 
right of the municipality is invaded. State v. Kolsem, 130 Ind. 434, 437. 

Charter — Rules of construction. — The charter or statute by which a municipal cor- 
poration is created or governed is its organic law, and the rules applicable to the inter- 
pretation of constitutions may be used in the construction thereof. New^comb v. City of 
Indianapolis, 141 Ind. 451. 

Though municipal charters are to be construed strictly, yet they are so to be construed 
as to carry into effect every power clearly intended to be conferred on the municipality 
and every power necessary to be implied for the complete exercise of the powers 
granted. Smith v. City of Madison, 7 Ind. 86; City of Crawfordsville v. Braden, 130 
Ind. 149; City of Lafayette v. Cox, 5 Ind. 38. 

INIunicipal corporations arc to be held strictly within the limits prescribed by statute, 
but within these limits they are favored by the courts. Kyle v. Malin, 8 Ind. 34 ; City of 
Crawfordsville v. Braden, 130 Ind. 149 ; Carr v. Town of Fowler, 74 Ind. 590. 

(^UO warranto. — The validity of the organization of a municipal corporation can be 
tested only by qtio warraiito proceedings. Mullikin v. City of Bloomington, 72 Ind. 161 ; 
Smelser v. Wayne, etc., Co., 82 Ind. 417 ; State v. Towi\ of Tipton, 109 Ind. 73; Willard 
V. Albertson, App. Ct., No. 2785, :May 24, 1899 : Willard v. Albertson, App. Ct., No. 27S6, 
May 24, 1899; 1 Beach Pub. Corp., §55; 2 Dillon :\tunit'. Corp.. §890, ct seq. 



§ 47 CITIES. 62 

Eequisites of quo warranto.— An information in the nature of a quo icarranto hj a 
private citizen, to test the legahty of a city organization, must show (1) that the relator 
is interested in the subject-matter, (2) that he did not, by his vote or other\N-ise, concur 
in the proceedings of which he complains, and (3) that, where there is no fraud or in- 
tentional violation of law, no public or private interest will be seriously affected by the 
granting of the relief demanded. State v. Town of Tipton, 109 Ind. 73, 78. 

Incorporation, presumption as to. — It is presumed, when the contrary is not shown, 
that all cities are incorporated under the general laws. City of Logansport v. Wright, 
25 Ind. 512; Town of Brazil v. Kress, 55 Ind. 14; State v. Hauser, 63 Ind. 155; Loeb v. 
City of Attica, 82 Ind. 175; House v. City of Greensburgh, 93 Ind. 533 ; City of Logans- 
port V. Dick, 70 Ind. 65; City of Brazil v. McBride, 69 Ind. 244; Lowrey v. City of 
Delphi, 55 Ind. 250; City of South Bend v. Paxon, 67 Ind. 228; Stultz v. State, 65 Ind. 
492; Hilgenberg v. Wilson, etc., 55 Ind. 210; Hopewell v. State, App. Ct., June 9, 1899. 

Prescription, waiver of iri'eg'ularities. — The exercise of corporate powers for twenty 
years over a defined territory, with the knowledge of the public, no question having 
been made as to its authority, will be deemed a waiver of irregularities in the organiza- 
tion of the corj^oration. Worley v. Harris, 82 Ind. 493 ; Strosser v. City of Ft. Wayne, 
100 Ind. 443, 450. 

Judicial notice. — Courts take judicial notice of the fact and date of the incorporation 
of cities. Stultz v. State, 65 Ind. 492; City of Huntington v. State, 66 Ind. 600; Town 
of Albion v. Hetrick, 90 Ind. 545; Pennsylvania Co. v. Horton, 132 Ind. 189. 

Same— Location — Boundaries. — Y^liile courts take judicial notice of the existence 
and names of cities and towns, and, in some general sense, of their locations, they do 
not take notice of their exact limits or boundaries. Whether a given location or de- 
scribed territory is within the limits of any town or city in the state, is a matter of aver- 
ment and proof. Grusenmeyer v. City of Logansport, 76 Ind. 549, 552 ; Strosser v. City 
of Ft. Wayne, 100 Ind. 443; City of Indianapolis v. McAvoy, 86 Ind. 587; Shea v. City 
of Muncie, 148 Ind. 14. See Johnson v. Common Council, etc., 16 Ind. 227; Louisville, 
etc., E. Co. V. Hixon, 101 Ind. 337. 

Courts will not take judicial notice of the number of wards or councilmen in a city. 
Baker v. Tobin, 40 Ind. 310; Moberry v. City of Jeffersonville, 38 Ind. 198. 

As to whether the courts will take judicial notice of the population of a particular city 
see Kalbrier v. Leonard, 34 Ind. 497. 

Power of courts— Private riglits.— The act for the incorporation of cities does not 
take from the courts authority to decide legal controversies concerning personal or 
property rights, and does not vest in the common councils of cities the power to de- 
termine such controversies. Wilhams v. Citizens' R. Co., 130 Ind. 71, 73. 

[Acts 1875, p. 30. In force August 24, 1875.] 

4:7. Marshal's assistants — Keturn. — 2. Such marshal or other 
officer, with the concurrence of such board or council, may appoint 
assistants, and shall, within sixty days from the time of receiving 
such warrant, make full returns, under oath, to said board or council, 
of the resident population in such town or city as aforesaid. R. S. 
1894, § 3463. 

[Acts 1867, p. 33. In force March 14, 1867.] 

48. Notice of election.— 3. If the return shall show a population 
of two thousand persons or more, the trustees or common council, 
within ten days thereafter, shall publish a notice to the voters of 
such town or city, as in other corporations, stating that on a day, at a 
place named, a poll will be opened to determine whether such town or 
city shall be incorporated as a city. R. S. 1894, § 3464. 



63 INCORPORATION AND ORGANIZATION. § 49 

[Acts 1867, p. 33. In force March 14, 1867.] 

i9. Election board. — 4. The trustees or common council shall ap- 
point three reputable voters in each ward, one to act as inspector and 
two as judges of elections therein; and the persons thus appointed 
shall choose a clerk of such election. Such trustees or council shall 
also procure and deliver to such inspector, at least one day prior to 
such election, a ballot-box, which shall thereafter be retained for the 
use of such ward. If such inspector or judges, or either of them, or 
the clerk, after appointment and acceptance thereof, neglect or refuse 
to serve, such inspector or clerk shall forfeit and pay for the use of 
such city any sum not exceeding forty dollars, which shall be recov- 
erable in an action at law; and the electors, being met on the day ap- 
pointed, may choose, by voice, such inspector or judges as may be 
necessar}^ to organize the board; and the inspector or judges so chosen 
may elect the clerk. R. S. 1894, § 3465. 

Inspector's duties. — The inspectors of an election are officers under this section. 
Their duties, as such, are ministerial, not judicial. Kisler v. Cameron, 39 Ind. 488. 

31andate will lie to compel the election board to perform the duties prescribed by the 
statute. Kisler v. Cameron, 39 Ind. 488; Johnston v. State, 128 Ind. 16; Enos v. State, 
131 Ind. 560. 

50. Manner and return of election. — 5. Such election shall be gov- 
erned by the same rules as other corporation elections. And the bal- 
lots of the voters shall have thereon the word ''yes" or the word "no;" 
and if a majority of the ballots given at such election have thereon the 
word "no," the voters of such town or city shall be deemed not to 
have consented to its incorporation as a city, and no further proceed- 
ings shall be had in relation thereto ; but if a majority of such ballots 
shall have thereon the word "yes," the inspector shall make a state- 
ment showing the number of votes given having the word "yes" and 
the number having the word "no" thereon; and such statement shall 
have attached thereto the affidavit of such trustees or of the mayor of 
such city, verifying the truth of the same, and, within five days after 
such election, shall be filed in the office of the clerk of the circuit court 
of the proper county. The clerk shall make a record thereof, for 
which he shall receive the same fees as are paid him for like services 
in other cases. R. S. 1894, § 3466. 

Adoption of city charter. — It is sufficient if a majority of the legal voters who vote 
at an election held in an incorporated town to determine whether a city charter shall 
be adopted agree to the change, and an averment in an information to test the legality 
of the city organization, that a majority of the legal voters of the town did not vote in 
favor of the change, is insufficient. When nothing is shown to the contrary, it will be 
presumed that the inspector of such election certified to the clerk of the circuit court a 
proper statement of the votes cast, and that the clerk made a record of the statement 
in his office, as required by law. State v. Town of Tipton, 109 Ind. 73. 

51. Town becomes city — Becord couclusiye. — 6. Such town shall 
thereafter be deemed an incorporated city, with the powers and fran- 
chises appertaining thereto, and the record in the office of the clerk, 
as aforesaid, shall be held in all courts as conclusive evidence of such 



§ 52 CITIES. 64 

incorporation in any suit pending therein. Bnt nothing in this act 
contained shall preclude any person interested from showing that a 
majority of the legal voters of any such town or city had not agreed 
to such change. R. S. 1894, § 3467. 

Clerk's record conclusive.— The record made and filed, as required by this section, 
is conclusive evidence of the regularity of all previous proceedings, except as to whether 
a majority of the votes cast favored the adoption of a city charter. State v. Town of 
Tipton, 109 Ind. 73. 

52. Notice of election. — 7. The trustees or common council of 
such town or city shall, within five days after the filing of such state- 
ment, divide the city into not less than three wards, but no ward shall 
contain less than three hundred inhabitants, and they shall also, 
within the time aforesaid, cause to be given to the voters thereof ten 
days' notice, by publication in one or more newspapers printed in such 
city, or county in which the same is situated, and by posting copies 
of the same in three public places in each ward, that an election will 
be held in each of the several wards on a day and at the places therein 
named, for the election of the city officers specified in such notice. 
R. S. 1894, § 8468. 

Statute construed — Election. — This provision is for a special election to fill offices 
for a newly created town or city. State v. Winter, 148 Ind. 177. 

Section 3469, E. S. 1894, was repealed by the act of March 4, 1891, and it is omitted. 
Swindell v. State, 143 Ind. 153, 161. 

[Acts 1891, p. 83. In force March 4, 1891.] 

53. Wards, division of cities into — Toting precincts. — 1. The com- 
mon council of all cities organized under the general laws of the state, 
shall have the power and are hereby invested with the authority to 
divide the said cities into wards and voting precincts and to redistrict 
the cities for ward and voting precinct purposes and for the purpose 
of holding city elections whenever in their judgment it is expedient 
to do so. Such wards shall contain, as nearly as possible, an equal 
number of voters and be composed of compact and contiguous territory; 

Provided, however, That whenever practicable, the common council 
shall adopt the division into voting precincts as made by the board of 
county commissioners; Provided, further, That no division into wards 
and precincts or redistricting for ward purposes shall be made oftener 
than once in two years. [As amended. Acts 1895, p. 173. In force 
March 8, 1895.] Burns' Supp. 1897, § 3470. 

The creation of additional wards, thus occasioning a vacancy in the office of council- 
man, which the council can fill by appointment, under the act of February 26, 1891, 
R. S. 1894, § 3484 (see post, § 67), is within the power of the council, under this section. 
Swindell, etc., v. State, 143 In 153. 

Wards— Judicial notice.— Courts will not take judicial notice of the number of wards 
or councilmen in a city. Baker v. Tobin, 40 Ind. 310; Moberry v. City of Jefferson- 
ville, 38 Ind. 198. 

54:. Ordinance creating wards — Notice. — 2. The common councils 
of cities shall, when changing the boundaries of wards and voting pre- 



65 INCORPORATION AND ORGANIZATION. § 55 

cincts, do so by ordinance, and shall give notice of such action by at 
least three publications for three successive weeks, and at least one 
month before any election, in two papers of opposite politics published 
in said citv. [As amended, Acts 1895, p. 173. In force March 8, 
1895.] Burns' Supp. 1897, § 3471. 

[Acts 1867 S., p. 33. In force March 14, 1867.] 

55. Old cities may adopt tliis act. — 80. Any city heretofore in- 
corporated under a law of this state may, by a resolution of the com- 
mon council, adopted by a majority vote thereof and entered upon 
their record book, become a municipal corporation under this act. 
The same shall be deemed a surrender of the charter of such city, with 
all the rights and franchises therein contained; and no such city shall 
be entitled to any provisions of this act without adopting the whole 
act. R. S. 1894, § 3472. 

56. Acquired rights — Interest on orders. — 81. No rights acquired 
or liabilities incurred in favor of or against the city, and no suit or 
prosecution of any kind pending, shall be affected by the surrender 
thereof, as provided in the preceding section, but the same shall re- 
main and be in progress as if no change had been made; and all' 
property, real and personal, of any kind whatever, belonging to any 
town or city before its acceptance of this act, shall be and remain the 
property of such city from and after its adoption of this act. Cities 
shall, in all cases, be liable to pay interest on their orders or other 
liabilities payable on demand from and after such demand, which 
shall be indorsed on the same by the treasurer when presented. R. S. 
1894, § 3473. 

57. Old oificers and ordinances. — 87. Officers of any city coming 
under this act shall remain and continue in their respective offices 
subject to the provisions of this act, and perform the duties herein re- 
quired, until the expiration of the term for which they were elected, 
and until their successors are chosen and qualified, under the oaths of 
office already taken and under the official bonds already filed : Pro- 
vided, That this section shall not extend to any office or officer not 
recognized by this act. All by-laws, ordinances, and regulations not 
inconsistent with this act shall remain and continue in full force until 
altered or repealed by the common council of such city. R. S. 1894, 
§ 3474. 

58. Duties of common council in towns. — 90. In those incorpo- 
rated towns which have a common council instead of a board of trus- 
tees in their organization, the duties of this act required to be per- 
formed by the board of trustees shall be performed by the common 
council: Provided, That this act shall be in force from and after its 
passage in all the cities which previous thereto have been organized 
and acting under the several acts hereby repealed without any further 
acceptance or proceedings on the part of any such city. R. S. 1894, 
§ 3475. 

CiT. AND To. — 5 



§ 59 CITIES. 66 

[Acts 1877, p. 12. In force March 6, 1877.] 

59. City officers. — 8. The officers of such city shall consist of 
a mayor, two councilmen from each ward, a city clerk, treasurer, 
civil engineer, street commissioner, chief of the fire department, 
health officer, marshal and (if the common council deem it expedient) 
a city attorney and a city judge. The city attorney, the street com- 
missioner, the civil engineer, the chief engineer of the fire depart- 
ment and the health officer shall be appointed by the common coun- 
cil: Provided, That the common council may dispense with the street 
commissioner and require the marshal to perform his duties. All 
such officers shall hold their respective offices for four (4) years, and 
until their successors are elected or appointed and qualified, those who 
are appointed by the common council being subject to removal by the 
council at its pleasure, after the first general election on the first Tues- 
day in May. Said officers shall respectively hold their offices as fol- 
lows: Tlie mayor, city judge, clerk, marshal and treasurer, four years 
each: And provided, That the term of office of the aforesaid officers 
shall commence on the first Monday in September following the gen- 
eral election in May, and that the terms of office shall be four years 
from such Monday in September: Aiid, provided further, That the 
mayor, clerk, treasurer, civil engineer, street commissioner, marshal, 
city attorney, city judge, chief engineer of the fire department and 
health officer now in office, and whose terms expire in May and Sep- 
tember, 1893, or at any other time, shall hold their respective offices 
until the first Monday in the month of September, 1894, and that all 
and each of such officers as shall so hold shall procure from their 
sureties a w^ritten consent to the aforesaid extension, or give a new^ bond 
to the satisfaction of the council, otherwise their term of office shall 
terminate in May or September of the original term for which the}^ w^ere 
elected or appointed, or at such time as their terms now expire. And 
the councilmen shall be elected by the legal voters of their respective 
wards; and the councilmen from each w^ard whose terms will expire in 
May, 1893, is hereby continued in office, and his term extended until 
May, 1894, and the councilmen of each w^ard whose term w^ould expire 
in May, 1894, is hereby continued in office and his term extended 
until May, 1896; and hereafter w4ien two councilmen are chosen at 
the same time from the same ward it shall be determined by lot at the 
first regular meeting of the council after their election who shall hold 
his office for two years, and w^ho for four years, and biennially there- 
after one councilman shall be elected by the legal voters of each ward. 
The term of councilmen shall be four years, and they shall be elected 
biennially. The successors of those whose terms are extended until 
May, 1894, shall then be elected and their terms continued four years, 
and the successors of those w^hose terms are extended until May, "^1896, 
shall then be elected and their terms continued four years; and all of 
said officers shall hold their respective offices during their respective 
terms, and until their successors are elected and qualified. The said 
clerk, treasurer and marshal, with the consent of the common coun- 



67 INCOKPOKATION AND ORGANIZATION. § 59 

oil. may appoint one or more deputies when necessary: Provided 
further, That the common council of a city governed by this act may 
order the election of an auditor, who shall be elected as other city 
officers are elected, and shall hold his office for the term of four years, 
and until his successor is elected and qualified; and the common 
council shall have power to prescribe the manner of qualifying for 
such office, and to prescribe the powers and duties thereof, which shall 
in nowise conflict with the provisions of this act: And provided further, 
That no person shall hold the office of councilman unless at the time 
of his election he is a resident of the ward from which he was elected; 
and in case of the removal of any councilman from the ward from 
which he was elected, the common council shall have the power to de- 
clare his office vacant and to elect his successor to fill such vacancy as 
provided by law. All officers who are not specifically named herein 
whose terras expire prior to the first Tuesday in May, 1894, at which 
date the first election under this amendment shall be held, are hereby 
continued in office until said time, and until their successors are elected 
and qualified, they to give new bond as the council mav direct. [As 
amended, Acts 1893, p. 50. In force February 21, 1893."^] R. S. 1894, 
§ 3476. 

By § 254 of act of 1891 (R. S. 1894, § 8672), the office of city assessor vras abolished; 
and by act of 1885 (R. S. 1894, § 3744), the offices of city assessor and city treasurer in 
cities of over 70,000 population are abolished. Seeposif, §§ 216 and 354. 

Power of legislature.— The legislature has no power under the constitution to ap- 
point local municipal officers. State v. Denny, 118 Ind. 382; State v. Denny, 118 Ind. 
449; City of Evansville v. State, 118 Ind. 426; State v. Blend, 121 Ind. 514. 

The legislature may provide for the appointment of police boards and officers. Such 
officers are not municipal officers ; they are state officers. In providing for their ap- 
pointment the legislature does not invade the right of local self-government. State v. 
Kolsem, 130 Ind. 434; State v. Blend, 121 Ind. 514, 520. 

Offices — jS^Ot contracts. — Offices are neither grants nor contracts, nor obligations 
which can not be changed or impaired. In the absence of constitutional restrictions the 
term of an office may be shortened, the duties of the office increased, and the compen- 
sation lessened by the legislative will. State v. Hyde, 129 Ind. 296; Coffin v. State, 7 
Ind. 157; Gilbert v. Board, etc., 8 Blackf. 81 ; Walker v. Peelle, 18 Ind. 264; Walker v. 
Dunham, 17 Ind. 483. 

Officers' salaries— Allowances.— An officer is entitled only to the fees allowed by 
the statute, and before any allowance is made him he must point out the particular 
statute authorizing the allowance. Legler v. Paine, 147 Ind. 181 ; Stiffler v. Board, etc., 
1 App. 368; Noble v. Board, etc., 101 Ind. 127; Wood v. Board, etc., 125 Ind. 270. 

Officers— Duties and liabilities.— Public officers having ministerial duties to per- 
form, in which private individuals have a direct interest, are liable to such individuals 
for an injury sustained by them in consequence of the failure to perform such duties. 
Stephenson V. Monmouth, etc., Co., 84 Fed. Rep. 114; Amy v. Supervisors, 11 Wall. 
136, 138. 

City officers, other than those who have judicial or police duties, are not olRcers 
"under the state" within the meaning of the constitution. State v. Kirk, 44 Ind. 401 ; 
Mohan v. Jackson, 52 Ind. 599; Waldo v. Wallace, 12 Ind. 569; Gulick v. New. 11 Ind. 
93; Howard v. Shoemaker, 35 Ind. Ill; Chamberlain v. State, 127 Ind. 365. 

Election, validity— Quo warranto.— The validity of the election of a city otHcor, 



§ 59 CITIES. 68 

and his eligibility to hold the office, may be tested by qiio imarranto proceedings. Par- 
sons V. Durand,'l50 Ind. 203; Gass v. State, 34 Ind. 425; Griebel v. State, 111 Ind. 
369; State v. Meyer, 60 Ind. 288; Brown v. Goben, 122 Ind. 113; Mannix v. State, 115 
Ind. 245. . 

If a person is legally entitled to an office of which he is not in possession, it is his 
property, and he can not be restricted to the compensation provided therefor, but may 
demand the office itself. City of Madison v. Korbly, 32 Ind. 74; Glascock v. Lyons, 20 
Ind. 1. 

The legality or validity of the election or appointment of a person to a city office 
may be inquired into in any proceeding by mandamus instituted to compel other per- 
sons to recognize the claimant's title to the office, or when he seeks to enter it or 
otherwise asserts his rights to act as a duly elected officer. Swindell v. State, 143 Ind. 
153, 157. 

Injunction— Jurisdiction of officers.— Injunction is the proper remedy to prevent 
city officers from exercising their powers outside the city limits. Stultz v. State, 65 Ind. 
492. 

Mandamus. — Mandamus is the proper remedy to coerce an officer to discharge a pub- 
lic duty, and if it is a matter in which the people in general are interested it is not re- 
quired that the applicant show any legal or special interest in the result sought to be 
obtained. It is only necessary that he be a citizen, interested in common with other 
citizens in the execution of the law. Wampler v. State, 148 Ind. 557. 

"VVlien the title to the office is involved, quo ivarranto is the proper remedy ; but when 
it is sought to prevent the intrusion of one claimant into the office against one occupy- 
ing the office upon a claim of right, injunction is the proper remedy. Parsons v. Durand, 
150 Ind. 203; City of Huntington v. Cast, 149 Ind. 255. 

Removal. — The city officers appointed by the council under above section may be re- 
moved at the pleasure of the council by a majority vote. City of Madison v. Korbly, 
32 Ind. 74; City of Madison v. Kelso, 32 Ind. 79; City of Logansport v. Crockett, 64 
Ind. 319; Muhler v. Hedekin, 119 Ind. 481; State v. Wilson, 142 Ind. 102; Goodwin v. 
State, 142 Ind. 117. See 1 Beach Pub. Corp., § 198. But as to city attorney and city 
civil engineer, see next section, (Acts 1899, p. 562). 

The common council may remove corporate officers, whether appointed by the coun- 
cil or not, for cause, upon a two-thirds vote. Muhler v. Hedekin, 119 Ind. 481 ; City of 
Madison v. Korbly, 32 Ind. 74. 

Upon an adoption of a resolution by the common council removing an officer, the 
yeas and nays thereon must be taken and entered of record. City of Logansport v. 
Crockett, 64 Ind. 319. 

The common council can not decide upon the legal rights of adverse claimants to an 
office, and enforce its decision by the short method of ejecting the incumbent. Parsons 
v. Durand, 150 Ind. 203. 

If an officer is wrongfully removed by the council, without authority, he may be rein- 
stated by mandamus. Muhler v. Hedekin, 119 Ind. 481, 485; City of Madison v. 
Korbly, 32 Ind. 74; Smndell v. State, 143 Ind. 153, 157. 

Councilmen — Moving* into another ward. — When a councilman is elected from a 
certain ward, and after his election he moves into and becomes a resident of another 
ward, he does not by such action vacate his office, for he is not an officer of the ward 
from which he is elected, but an officer of the entire city. State v. Craig, 132 Ind. 54. 

Notice. — ^^Hien notice must be given by a city to terminate a contract, one given by 
a councilman, without authority from the common council, is not sufficient. City of In- 
dianapohs v. Bly, 39 Ind. 373. 

City treasurer. — The city treasurer can not, under this act, appoint a deputy except 
by the consent of the common council. Humphreys v. Stevens, 49 Ind. 491 ; City of Ft. 
Wayne v. Lehr, 88 Ind. 62. 



69 INCOKrORATION AND ORGANIZATION. ; § 59 

Same — YacailCj' — How filled. — Vacancies in the office of treasurer are not filled by 
election, but by appointment of the common council. State v. Winter, 148 Ind. 177. 

One elected to the office of city treasurer at a time not provided by law has no title to 
the office. State v. Winter, 148 Ind. 177. 

Street commissioner. — The common council of a city, while the street commissioner 
remains in office, can not direct that his duties be performed by any other officer. 
Mitchell V. Wiles, 59 Ind. 364. 

The common council may, by a majority vote, remove and dispense with the street 
commissioner and require the marshal to perform his duties. City of Madison v. Kelso, 
32 Ind. 79; City of Madison v. Korbly, 32 Ind. 74; State v. Sohn, 97 Ind. 101. 

An order of the common council dispensing with the services of the street commis- 
sfoner is a removal from office. When this is done for one year, and said officer is 
then reappointed, his term of office commences from the time of his reappointment. 
State V. Sohn, 97 Ind. 101. 

Couiicilmeil — Liability. — The members of a common council of a city are not liable 
either civilly or criininally for acts done by them as such in the exercise of a discretion 
confided to them by law, unless they act corruptly. Walker v. Hallock, 32 Ind. 239; 
Baker v. State, 27 Ind. 485; Newman v. Sylvester, 42 Ind. 106. 

Officers— Statutory powers— Notice. — All persons dealing with officers exercising 
statutory powers, and whose authority is limited by statute, are charged with notice of 
the scope of such officer's authority. Hamilton v. City of Shelbyville, 6 App. 538; 
Julian V. State, 140 Ind. 581; Smith v. Board of Commissioners, 6 App. 153; 1 Dillon 
Munic. Corp., 4th ed., §§ 445, 447; 1 Beach Pub. Corp., §§ 195, 202, 242; 2 Beach Conts., 
§1136. 

Duty of officers— Presumption. — Until the contrary appears, the officers of a mu- 
nicipal corporation are presumed to have done their duty. Cummins v. City of Sey- 
mour, 79 Ind. 491; Enos v. State, 131 Ind. 560; Lostutter v. City of Aurora, 126 Ind. 
436; State v. Wenzel, 77 Ind. 428; Adams v. Davis, 109 Ind. 10, 13. 

The contrary not being alleged, it will be presumed that city officers were lawfully 
elected. Stultz v. State, 65 Ind. 492. 

Officers— Presumption of rig'htfiil conduct.— It can not be presumed that a wrong 
was committed by the officers of a public corporation. It must be presumed that they 
rightfully performed their duty. The burden is on the party complaining to rebut the 
presumption by bringing forward countervailing facts, not by pleading bare coiiclusions 
or recitals. Lostutter v. City of Aurora, 126 Ind. 436, 437. 

Power conferred in permissive terms. — The exercise of power conferred by statute 
on public officers, affecting the rights of individuals, may be enforced as a duty, though 
the language of the statute be permissive. City of Indianapolis v. Mcxivoy, 86 Ind. 587 ; 
Board, etc., v. Benson, 83 Ind. 469. 

It is not necessary that a statute should in direct terms declare the duty of an officer, 
in order to make it an imperative one. The duty may be deduced from tlie general 
provisions and the scope of the statute, regard being had to the evil intended to be 
remedied, and the object sought to be accomplished. State v. Haworth, 122 Ind. 462. 

A municipal corporation is bound by the declarations of its officers, where such dec- 
larations accompany, and are explanatory of, an act done by the officer in the scope of 
his authority. Los Angeles City Water Co. v. City of Los Angeles, 88 Fed. Rep. 720; 
1 Dillon Munic. Corp., 4th ed., § 237, n. p. 321. 

Officer de facto— Validity of acts of. — Where one is elected to an office under an 
unconstitutional statute, he is an officer de facto, and his acts performed before ouster 
are, as to the public, as valid as the acts of an officer de jure. The public is not to suffer 
because those discharging the functions of an officer may have a defective title, or no 
title at all. Parker v. State, 133 Ind. 178; :Mo\vbray v. State, 88 Ind. 324; Baker v. 
Wambaugh, 99 Ind. 312. 

As to Avho are dfi/ac?;o officers, the validity of their acts, their rights and liabilities, 
etc., see 1 Beach Pub. Corp., §§ 182, 183, 184, 18(>; 1 Dillon :\[unic. Corp., § 276. 



§ 59a CITIES. . 70 

[Acts 1899, p. 562. In force March 6, 1899.] 

59a. City attorney — City euglueer— Eemoyal. — 1 . That the various 
city attorneys and city civil engineers, elected by the common council of 
the various cities of the state of Indiana, where the population of such 
city does not exceed thirty-five thousand, as shown by the last pre- 
ceding census, shall not be removed from office for the term for which 
they are, or were, elected, excepting for cause. 

[Acts 1867, p. 33. In force March 14, 1867.] 

60. Oath of election boards. — 9. Before the opening of the polls 
on the day of such election, the inspector and judges thus appointed, 
and the clerk, shall each and severally be sworn, by an officer author- 
ized to administer oaths, to the faithful discharge of their respective 
duties as officers of such election. R. S. 1894, § 3477. 

61. Law of city elections. — 10. All elections of such cities shall 
be governed by the laws in force regulating township and other elec- 
tions; and the voters therein shall have the like qualifications and be 
subject to the same restrictions and liabilities. R. S. 1894, § 3478. 

See post, § 978, et seq. 

SeeR. S. 1894, §6261. 

For general election law, see E. S. 1894, §6190, et seq., Burns' Siipp. 1897, §6200, et 
seq., and 6339a, et seq., and Acts 1899, pp. 60, 365, 381, 539, 540. 

Elections— Irregularities— Statutes construed.— Statutes regulating the mere mode 
of conducting elections are directory, and any departure from the prescribed mode will 
not vitiate an election, if the irregularity does not deprive any legal voter of his vote, 
or admit a disqualified person to vote, or cast uncertainty on the result, and has not 
been occasioned by the agency of a party seeking to derive a benefit from it. Gass v. 
State, 34 Ind. 425; Mustard v. Hoppess, 69 Ind. 324, 334; Enos v. State, 131 Ind. 560. 

The first general election for city officers was to be held, under the amendatory act 
of 1859, on the first Tuesday of May of that year. WiUiams v. Connelly, 13 Ind. 502. 

Municipal election— Sale of intoxicating' liquor.— An election held under the act of 
March 25, 1879 (R. S. 1894, §4250), authorizing cities to construct water-works, is a 
municipal election within the act of March 5, 1877, prohibiting the sale of intoxicating 
liquors on the day of a municipal election. State v. Kidd, 74 Ind. 554. 

Special election — Councilmen. — It is unlawful for a licensed vendor to sell intoxi- 
cating liquors on the day of a special election for councilmen in a ward different from 
that in which his place of business is situate. Qualter v. State, 120 Ind. 92. 

Primary election. — It is a crime for a person having a hcense under the law to sell 
intoxicating liquors in a less quantity than a quart at a time on the day of a primary 
election held by a political party to select candidates to be voted for at a general elec- 
tion. State V. Hirsch, 125 Ind.'207. 

G2. Canvass of votes. — 11. When the poll of any such election 
is closed, the inspector and judges thereof, in each of said wards, 
shall immediately proceed to canvass the votes therein given, and 
shall make out, under their hands, a statement specifying the number 
of votes each person voted for has received, and the office designated 
thereby to fill; and said statement, together with the poll-list and one 
of the tally-papers, shall be deposited with the inspector, or, if he 



71 INCORPORATION AND ORGANIZATION. § 63 

should be unable to further serve, with one of the judges elected by 
such board of election. R. S. 1894, § 3479. 

63. Inspector's certificate. — 12. The inspectors named in such 
appointment, if at the first election, or the inspector appointed as 
hereinafter provided, if at a subsequent election, of the several wards 
shall, on the day next following the same, meet at the common coun- 
cil room, and, upon the inspection of the statements aforesaid, deter- 
mine the persons having the highest number of votes for each of the 
several offices voted for, and thereupon shall make and sign a certifi- 
cate, setting forth the names of the persons voted for and for what 
offices, the whole number of votes given for each of the several offices, 
and the person having the highest number therefor, and shall declare 
the person elected to the same. Such certificate shall be filed with 
the clerk of the corporation. Should two or more persons have an 
equal and the highest number of votes for the same office, such board 
of inspectors shall certify the fact to the trustees or common council, 
as the case may be, who shall immediately give notice, as in other 
elections, for a new election, specifying the office to be filled thereby 
and the ward, if a councilman, in which the poll is to be opened. R. 
S. 1894, §3480. 

Inspectors' duties— Certificate— Mandate.— The duties of inspectors of city elec- 
tions are ministerial, and not judicial, and a mandamus will lie to compel them to give 
a certificate of election to the person who, upon the face of the proper election docu- 
ment, appears to have received the highest number of votes. Kisler v. Cameron, 39 
Ind. 488; Johnston v. State, 128 Ind. 16; Enos v. State, 131 Ind. 560; Moore v. Kessler, 
59 Ind. 152. 

If they unlawfully fail to perform their duty, or perform it in an unlawful manner, 
whereby a person is injured, they are liable ; and it is immaterial whether they acted 
maliciously, purposely or by mistake. Moore v. Kessler, 59 Ind. 152. 

The board of canvassers of a city election can not hear evidence of the regularity of 
the election ; their powers are ministerial. Moore v. Kessler, 59 Ind. 152. 

Ee turns of election — Uncertainty in. — Where the returns of an election fail to state 
for what office parties named are voted for, they are void for uncertainty, and the can- 
vassers of election should reject them. Moore v. Kessler, 59 Ind. 152. 

Municipal elections— Contests— Rig-ht of appeal.— Section 6323, Burns' R. 3. 1894, 
providing that all contests for municipal oflices shall be tried in the manner provided 
by law for the contest of county and township offices, is construed with § 644, Burns' 
R. S. 1894, providing generally for appeals from the circuit court to the supreme court, 
and an appeal will lie from the circuit court from contested municipal elections. Weak- 
ley V. Wolf, 148 Ind. 208. 

64. Notice to persons elected. — 13. It shall be the duty of the clerk 
of such municipal corporation, within twenty-four hours after tiling 
the certificate of the board of inspectors in his office, as provided in the 
preceding section, to notify, either by personal service or by leaving 
a copy of the same at the usual place of residence, each and all of the 
persons elected to fill the said offices. R. S. 1894, § 3481. 

65. Penalty for refusal to serve. — 14. Any person thus elected 
who shall not, within five days after being notified by personal service 
of the same, take and subscribe the oath of office before some proper 



§ 66 CITIES. 72 

officer, and file the same with the clerk of such corporation, shall be 
deemed as having refused to serve, and shall forfeit, for the use of 
such city, therefor the sum of ten dollars, provided he is not prevented 
from so doing by sickness or unavoidable accident, which forfeiture 
shall be recoverable on complaint filed in the name of the city against 
the party so failing to serve. R. S. 1894, § 3482. 

66. Yacaiicies. — 16. Vacancies in the office of mayor, city judge, 
clerk or councilman, occurring in any manner, shall be filled by 
special election ordered by the common council, and conducted in the 
same manner as the annual elections therefor, and all vacancies in the 
other offices shall be filled by the common council. R. S. 1894, § 3483. 

[Acts 1891, page 33. In force June 3, 1891.] 

67. Yacaucies — How filled. — 1. That all vacancies in the office of 
mayor, clerk or councilman of any incorporated city occurring in any 
manner, shall be filled by appointment by the common council of such 
city. R. S. 1894, § 3484. 

68. Term of appointee. — 2. Such appointee shall hold office until 
the election and qualification of his successor, who shall be elected at 
the next general election after such vacancy. R. S. 1894, § 3485. 

Treasurer — Yacancy— Appointment — Term. — One appointed to fill a vacancy caused 
by the death of the city treasurer is entitled to hold the office until the expiration of 
the tes-m for which the deceased was elected. Carson v. State, 145 Ind. 348. 

A vacancy in the office of city treasurer can not be filled by election, but must be 
filled by appointment. State v. Winter, 148 Ind. 177. 

The council can fill a vacancy in the office of councilman occurring from the creation 
of additional wards. S^\T.ndell v. State, 143 Ind. 153. 

Under the act of 1857 a person elected to fill a vacancy in the office of councilman 
held for the unexpired term. State v. Mayor, etc., 28 Ind. 248. 

[Acts 1881, p. 14. In force March 8, 1881.] 

69. Cities of fifteen thousand voters. — 1. Any city incorporated 
under the laws of the state, and having a voting population of fifteen 
thousand votes or more, as shown by the poll-books of any general 
state election, shall be governed by a common council and board of 
aldermen. R. S, 1894, § 3486. 

70. Couucilmen. — 2. Such city shall be divided, by the common 
council, into wards containing as nearly as possible equal numbers of 
voters. No ward shall contain less than six hundred voters, nor shall 
any city be divided into more than twentj^-five wards; and each ward 
shall be entitled to one councilman, who shall be elected on the first 
Tuesday in May, in the year 1881, and shall serve until the first day 
of January, 1884; and whose successor shall be elected on the second 
Tuesday in October, 1883, and biennialy thereafter, and whose term 
of office shall be two years from the first of January next following, 
and until his successor is elected and qualified. R. S. 1894, § 3487. 

71. Aldermen. — 3. Any such city shall be divided by the common 
council into five aldermanic districts, formed of an equal number of 
contiguous wards; and two aldermen shall be elected in each district, 
who shall be freeholders in the district which they are elected to rep- 



73 INCORPORATION AND ORGANIZATION. § 72 

resent, and one of whom shall be elected on the first Tuesday in May, 
in the year 1881, and who shall serve until the first day of January in 
the yearl884, and until his successor is elected and qualified. On the 
second Tuesday in October, 1883, and biennially ever after, there shall 
be elected two aldermen from each aidermanic district, whose term of 
office -shall begin on the first day of January after such election, and 
who shall serve for two years, and until their successors are elected 
and qualified. In case of vacancies in the board of aldermen, the per- 
son elected to fill such vacancy shall serve only the unexpired term of 
his predecessor. Any member of the board of aldermen may, by 
seven votes, be expelled for malfeasance in office, but not a second 
time for the same offense: Provided, That each alderman elected on 
the first Tuesdav in May, 1880, shall hold his office until his successor 
is elected and qualified. R. S. 1894, § 3488. 

72. Legislation — Elections. ^ — 4. Concurrent action of the common 
council and board of aldermen shall be necessary for the passage of 
any ordinance, order, resolution, or motion for the appropriation of 
money or for the government of such city. For the appointment of 
such officers and boards as are appointed from the members of the 
common council, and required or authorized by act of the general as- 
sembly or ordinances of the city, the common council and board of 
aldermen sha,ll meet in joint convention, in the council chamber, on 
the first Friday evening after the first annual meeting of the common 
council, at eight o'clock, and shall proceed to the election of such 
officers and boards by ballot, and such joint convention may adjourn 
from time to time until its work is completed; and all such officers 
and boards so elected shall serve during their term of office as council- 
men, and until their successors are elected and qualified. And for the 
appointment of all other officers, commissioners, trustees, and boards 
required or authorized by act of the general assembly or ordinances of 
the city, the common council and board of aldermen shall meet in 
joint convention, in the council chamber, on the second Monday even- 
ing in November after the first annual meeting of the common council, 
and shall proceed to the election of such officers, commissioners, 
trustees, and boards by ballot; and such joint convention may adjourn 
from time to time until its work is completed. All such officers, com- 
missioners, trustees, and boards, so elected, shall serve for two years 
from the first day of January after their election, and until their suc- 
cessors are elected and qualified, unless sooner removed according to 
law: Provided, That no member of the board of aldermen shall be 
elected to serve on any board elected by such joint convention. K. S. 
1894, § 3489. 

73. Separate action. — 5. The powers and duties of the common 
council, as defined in act of March 14, 1867, and subsequent acts, 
shall remain in force under this act, except that the concurrent action 
of the board of aldermen shall be required in all cases, except in re- 
gard to qualification of its members and its order of business, to give 
e-ffect to its action; but all ordinances, orders, resolutions, or motions 



§ 74 ■ CITIES. 74 

for the appropriation of money or for the government or regulation of 
such city shall originate in the common council; and upon all ques- 
tions, except as herein provided, the action of the common council 
and board of aldermen shall be separate and distinct. And no ordi- 
nance, resolution, or motion providing for joint committees of the two 
bodies shall be passed; and no ordinance, order, or resolution shall 
become the law or be operative until it has been passed by both bodies, 
and been signed by the mayor and president of the board of aldermen, 
and promulgated according to law. R. S. 1894, § 3490. 

74. Officers — Election. — 6. All officers of any such city elected on 
the first Tuesday in May, 1881, shall serve until the first day of Janu- 
ary, 1884; their successors shall be elected on the second Tuesday in 
October, 1883, and biennially ever after, to serve two years, and until 
their successors are elected and qualified. R. S. 1894, § 3491. 

75. President of board. — 7. A president of the board of aldermen 
shall be elected by the board at their first annual meeting after each 
general election [and also a president pro tempore]; who shall, in case 
of absence or disability of the president, perform all his duties. R. S. 
1894, § 3492. 

76. Records — Journal. — 8. The city clerk shall have charge of 
the books and records of the board of aldermen ; and all meetings of 
the board of aldermen shall be public; and the minutes and records 
thereof shall be kept by a deputy clerk, appointed by the city clerk 
and approved by the common council and board of aldermen, and 
who shall keep a journal of all proceedings, and enter the ayes and 
noes on any ordinance, order, resolution, or motion, at the request of 
any two members. R. S. 1894, § 3493. 

77. Pay of members. — 9. The common council and board of alder- 
men shall determine, by ordinance, the compensation to be paid the 
members of each body: Provided, That such compensation shall not 
exceed the sum of two hundred dollars per year to each person. R. S. 
1894, § 3494. 

78. President of board, when acting mayor. — 10. In case of re- 
moval, death, resignation, or non-election of mayor, the duties of the 
office of mayor shall devolve on the president of the board of alder- 
men until a mayor is chosen and qualified according to the provisions 
of this act. R. S. 1894, § 3495. 

[Acts 1881 S., p. 408. In force April 15, 1881.] 

79. Sewer tax and districts. — 1. In all cities organized and in- 
corporated under the general laws of this state, having a common 
council and board of aldermen, such common council and board of 
aldermen shall have power to levy, and cause to be assessed and col- 
lected, in each year, a tax, to be designated as a sewer tax, on all 
property subject to state and county taxation in such city; and the 
cost of the construction, maintenance, or repair of any or all sewers 
or drains of an internal diameter of more than three feet may be paid 
out of such sewer tax. And such common council and board of alder- 



75 INCORPORATION AND ORGANIZATION. § 80 

men shall also have power to create and divide such city into sewer 
districts; and the cost of the construction, maintenance, and repair of 
any or all sewers or drains in each district shall be paid out of the 
sewer tax of such district: Provided, hoiuever, That where a sewer or 
drain extends into or through more than one district, the cost of the 
construction, maintenance, or repair thereof may be paid out of the 
sewer tax of such districts, in such proportions as the common coun- 
cil and board of aldermen may direct. And such common council 
and board of aldermen shall have power to enact such by-laws and 
ordinances as mav be necessary to carry into effect the powers herein 
conferred. R. S.'' 1894, § 3496. 

Sewers.— See i^osi, §124, clauses 26 and 43, §§ 127, 183, 1090, et seq., and 1107, et cpq. 

[Acts 1867, p. 33. In force March 14, 1867.] 

80. Mayor's duties and powers. — 17. It shall be the duty of the 
mayor to see that the laws of the state and the by-laws and ordinances 
of the common council be faithfully executed within such city. He 
shall be a conservator of the peace, and, as such, shall have, within 
the city limits, the power conferred upon justices of the peace for that 
purpose. He shall exercise supervision over subordinate officers, and 
recommend to the common council such measures as he deems for the 
public good. He shall sign all commissions, licenses, and permits 
granted by the common council; and he shall perform such other 
duties as the nature of his office and the interests of the city require. 
He shall have the custody of the corporate seal; and may take and 
certify, under the same, the proof and acknowledgment of deeds and 
other instruments in writing, which shall be good in any court in this 
state without further authentication; he may also take and certify 
depositions and affidavits, and the same shall have a like force and 
effect as if taken by a justice of the peace. He shall hold a city court 
every day, Sunday excepted, at a place to be furnished by the com- 
mon council; while sitting as such court, he shall have exclusive ju- 
risdiction of all prosecutions for violation of the by-laws and ordi- 
nances of the city and township in which such city is situated. He 
shall have, within the limits of said city, the jurisdiction and powers 
of a justice of the peace in all miatters, civil and criminal, arising un- 
der the laws of this state; and for crimes and misdemeanors, his juris- 
diction shall be co-extensive with the county in which such city is sit- 
uated: Provided, That, in trials before him, he shall have power to 
adjudge imprisonment as a part of his sentence, not exceeding thirty 
days, in the city or county prison. In all actions in the city judge's 
or mayor's court, either party may have a trial by jury, a change of 
venue to a justice of the peace in such city, and an appeal to a court 
of competent jurisdiction, under the same restrictions and in the same 
manner as in a justice's court, except that in cases where the mayor 
has exclusive jurisdiction no change of venue shall be allowed. The 
same rules of pleadings and practice shall be observed in the city 
judge's or mayor's court that are in a justice's court. The mayor 
shall give bond, payable to the state of Indiana, in any penal sum not 



§ 80 CITIES. 76 

less than three thousand dollars, to be approved by the clerk of the 
circuit court, with freehold securit}^ conditioned for the faithful per- 
formance of his duties as mayor and all other duties herein required, 
and file the same with the clerk of the circuit court within the time 
directed by law for justices of the peace. All fines and penalties col- 
lected by him shall be paid into the city treasury within one month 
after the same shall have been received by him, in the kind of funds 
so received, except when otherwise directed by acts prescribing the 
duties and powers of justices of the peace; in which case he shall pay 
all fines and forfeitures collected by him for violation of the penal 
laws of the state into the county treasury, in the same manner and 
under the same restrictions that justices of the peace are required to 
do. R. S. 1894, § 3497. 

Bond of Mayor. See post, § 113. 

Title to office— Intrusion— Quo warranto and injunction.— ^Vhen the title to the 
office of mayor is involved, quo rcarranto is the proper remedy ; but injunction is the 
proper remedy to prevent the intrusion of one claimant into the office against one oc- 
cupying the office upon a claim of right. Parsons v. Durand, 150 Ind. 203 ; City of 
Huntington v. Cast, 149 Ind. 255, 

Powers — Duties, etc. — The mayor is the chief executive and administrative officer of 
the corporation. It is his duty to execute the laws of the state and the ordinances and 
by-laws of the city. His powers depend upon the statute. In addition to executive 
and administrative duties he has the judicial duties imposed by the statute. 1 Beach 
Pub. Corp., § 178, et seq. ; 1 Dillon Corp., 4th ed., §§ 291, 292; Waldo v. AVallace, 12 Ind. 
569. 

Contracts. — The common council of a city alone has power to obligate the city; the 
mayor, in executing contracts, acts simply as the instrument or agent of the council. 
He can only bind the city according to the authority given him. State v. City of Michi- 
gan City, 138 Ind. 455. 

A judicial officer. — The mayor of a city, when authorized to try actions, is a judicial 
officer within the meaning of the constitution, and is ineligible to any office other than a 
judicial one during the term for which he was elected. In the discharge of judicial 
duties he acts as a state officer. Waldo v. Wallace, 12 Ind. 569 ; Gulick v. New, 14 Ind. 
93; Howard v. Shoemaker, 35 Ind. 111. 

Jurisdiction. — Within the city limits a mayor has the jurisdiction and powers of a 
justice of the peace ; in prosecutions for crimes and misdemeanors the jurisdiction is 
co-extensive with the county in which the city is situated; and, as a general rule, an 
action may be brought before the mayor upon a contract made, or for a tort committed, 
without the city, if the defendant lives in the city. Gulick v. New, 14 Ind. 93 ; Toledo, 
etc., R. Co.. v. Stevens, 63 Ind. 337; Wabash, etc., R. Co. v. Lash, 103 Ind. 80; State 
V. Wolever, 127 Ind. 306; Stevens v. Anderson, etc., 145 Ind. 304; State v. Gardner, 8 
App. 440. 

Additional jurisdiction. — In addition to the jurisdiction of justices of the peace, the 
mayor has power to adjudge imprisonment as a part of his sentence, not exceeding 
thirty days, in the city or county prison. This provision of the statute giving to mayors 
the power to imprison as a part of the sentence for a violation of law, is constitu- 
tional. Stevens v. Anderson, etc., 145 Ind. 304 ; State v. Wolever, 127 Ind. 306 ; Waldo 
V. Wallace, 12 Ind. 569. 

Prior to the act of 1875 {post, § 264) the mayor had exclusive jurisdiction over actions 
for the violation of city ordinances. McNulty v. Connew, 50 Ind. 569. 



77 INCORPORATION AND ORGANIZATION. § 81 

Antheutieation of proceeding's. — AVhen the mayor acts under the state laws as a 
justice 01 the peace, liis proceedings need not be authenticated by the seal of the city. 
State V. Walters, 64 Ind. 226; Cluggish v. Eogers, 13 Ind. 538. 

Judicial action — Liability. — Mayors can not be held liable for damages on account 
of any judicial action taken by them. State v. Wolever, 127 Ind. 306. 

A mayor who maliciously or corruptly refuses to grant a change of venue, upon a 
proper application, in a case pending before him, is not liable civilly to the person ap- 
pMng for it. State v. Wolever, 127 Ind. 306. 

Act constitutional — Judicial powers. — The statute conferring judicial powers upon 
the mayor of a city is not unconstitutional. "Waldo v. Wallace, 12 Ind. 569. 

Executive — Administrative — Judicial duties— Constitution. — The executive and ad- 
ministrative duties of the mayor of a city, under the act of 1857, are not within the 
executive and administrative departments of the state government, as established by 
the constitution. In respect to such duties, the mayor is merely an officer of a munici- 
pal corporation ; and he may discharge such duties and his judicial functions at the 
same time without violating § 1 of art. 3 of the constitution. Waldo v. Wallace, 12 
Ind. 569. 

A lucrative office. — The offices of mayor of a city incorporated under the act of 1867, 
and of a director of the state prison are both lucrative offices under the constitution. 
The election of one who is such director to the office of mayor and his acceptance thereof 
will vacate his office of director. Howard v. Shoemaker, 35 Ind. Ill ; State v. Kirk, 44 
Ind. 401, 406. 

Pleading' and practice. — Pleading and practice before the mayor is the same as be- 
fore justices of the peace ; and upon appeal from the mayor to the circuit court the cause 
may proceed according to the rules of pleading and practice before justices of the peace. 
Berkey V. City of Elkhart,, 141 Ind. 408; Wabash, etc., E. Co. v. Lash, 103 Ind. 80; 
Carter v. Edwards, 16 Ind. 238 ; Hill v. Sleeper, 58 Ind. 221 ; Zorger v. City of Greens- 
burg, 60 Ind. 1 ; City of Goshen v. Croxton, 34 Ind. 239 ; City of Greensburg v. Corwin,' 
58 Ind. 518; Hasty v. City of Huntington, 105 Ind. 541; Berkey v. City of Elkhart, 13 
App. 314. See post, §84 and note. 

Depositions. — Depositions may be taken outside of the state in actions pending before 
mayors. Peeves v. Allen, 42 Ind. 359. 

Mandamus. — The duty of the mayor to recognize members of the common council and 
permit them to exercise their duties as such may, in case of his refusal, be enforced by 
mandamus. Swindell v. State, 143 Ind. 153. 

81. Docket fees — Tacaucies. — 18. The mayor or city judge shall 
keep a docket, as justices of the peace do. And, in case of the absence 
of such mayor or city judge from the city for the space of five days or 
more, or of inability, in consequence of sickness or other cause, for a 
like period, he shall, prior to such departure in the first case, and at 
the expiration of five days in the last case (if his inability continue), 
deposit, or cause to be deposited, his docket with any justice of the 
peace within said city; and such justice shall, during such absence or 
inability, be vested with and exercise all the judicial powers and au- 
thority of said mayor or city judge, and be entitled to his fees and 
emoluments therefor. The mayor or city judge shall be entitled to 
the same fees as justices of the peace. In case of vacancy in the office 
of mayor or city judge by death, resignation, or otherwise, the council 
shall cause his docket to be placed in the hands of some justice of the 
peace in said city, who shall act as and have all the judicial powers 



§ 82 CITIES. 78 

and authority of such mayor or city judge until the vacancy can be 
supplied by special election ; and the official bond of such justice shall 
embrace all his official acts in such capacity : Provided, That all fees 
herein provided for the mayor or city judge shall be paid to such 
mayor or city judge for the use and benefit of such city ; which fees 
the mayor or city judge shall pay into the city treasury, once in every 
three months, for the benefit of the general funds of said city. The 
mayor or city judge shall draw no salary from the city treasury until 
he shall have filed with the city clerk or auditor a relinquishment and 
transfer to such city of all taxable fees allow^ed him by law in cases 
cognizable before him for alleged violations of the ordinances or by- 
laws of such city. In any city containing a population of less than 
ten thousand, the mayor may, at any time, with the consent of the 
common council, deposit his docket with any justice of the peace of 
such city, who shall thereupon act as, and have all the judicial pow- 
ers and authority of such mayor, during such time as the mayor may 
continue such docket in the hands of such justice. R. S. 1894, §3498. 

82. Suits by city, what averments unnecessary. — 89. Whenever 
any suit shall be instituted by such city, it shall not be necessary to 
aver its corporate organization or the publication of its by-laws or 
ordinances, unless the same is contradicted by affidavit. R. S. 1894, 
§ 3499. 

See post, § 84. 

Proof of publication— Affidavit. — When a city sues for the penalty for violation of 
an ordinance it is not necessary that proof of publication be made, unless it be denied 
by affidavit. Lake Erie, etc., R. Co. v. City of Noblesville, 15 App. 697; Green v. City 
of IndianapoUs, 25 Ind. 490; Lake Erie, etc., R. Co. v. City of Noblesville, 16 App. 20. 

Action on bond. — Where a bond is given in a legal proceeding against a city running 

to the mayor of the city of , and marshal of the city of , the city is the real 

party in interest in an action upon such bond. Hyatt v. City of Washington, 20 App. 
14S. 

83. Suits against railroads — Process — Judgment. — 91. In all 

prosecutions against any railroad or other incorporated company for 
the violation of any ordinance of the common council of any city, a 
summons may issue against the company and may be served on the 
president, superintendent, secretary, treasurer, station agent, or gen- 
eral agent; and, upon the trial of the cause, judgment may be ren- 
dered against the railroad company for such penalty as may be 
adjudged; or the conductors or other agents of the company guilty of 
the violations may be arrested by warrant, and may be*^ proceeded 
against personally as in other cases. R. S. 1894, § 3500. 

84-. Actions for penaltieSe— 19. All actions brought to recover any 
penalty or forfeiture incurred under this act, or ordinances made in 
pursuance thereof, shall be brought in the corporate name of such 
city. The process in every such action shall be a warrant; and the 
person named in such warrant shall be arrested, and retained in 
custody, or under reasonable recognizance, until the next sitting of 



79 INCORPORATION AND ORGANIZATION. § 84 

the city court; and it shall not be necessary to file with the affidavit 
or complaint a copy of the ordinance or section thereof charged to 
have been violated, but it shall be sufficient to recite in the affidavit 
or complaint the number of the section charged to have been violated, 
with the date of its adoption; nor shall it be necessary to copy any 
part of the affidavit, complaint, or other pleadings in the record of 
the cause: Provided, That the mayor shall note upon his docket the 
parties to the action, the title to the cause, the filing of the complaint 
or affidavit, the issuing and return of process, and the judgment and 
proceedings had in the cause, and the satisfaction of judgment when 
paid. R. S. 1894, § 3501. 

See ante, § 82. 

Civil actions. — Actions before the mayor to recover a penalty for the violation of a 
city ordinance, though a warrant for the arrest of the defendant may be issued and 
served, is a civil action, and the rules of practice in civil actions apply and are to be ob- 
served on the trial. Common Council v. Fairchild, 1 Ind. 315; Board, etc., v. Chissom, 
7 Ind. 688; Ridge v. City of Crawfordsville, 4 App. 513; City of Greensburg v. Cor^in, 
58 Ind. 518; City of Hammond v. New York, etc., 5 App. 526; City of Hammond v. 
New York, etc., R. Co., 126 Ind. 597; City of Goshen v. Croxton, 34 Ind. 239; Shea v. 
City of Muncie, 148 Ind. 14; 1 Beach Pub. Corp., § 523. 

Complaint — Pleading-— Copy of ordinance.— A copy of the ordinance need not be set 
forth in an action thereon, but it is sufficient to recite in the affidavit or complaint the 
number of the section charged to have been violated with the date of its adoption. 
Where two or more sections are relied upon as defining the offense and prescribing the 
penalty, both sections should be referred to by their numbers and date of adoption. 
Lake Erie, etc., R. Co. v. City of Noblesville, 15 App. 697 ; Whitson v. City of Franklin, 
34 Ind. 392; City of Huntington v. Cheesbro, 57 Ind. 74; City of Goshen v. Kern, 63 
Ind. 468; City of Frankfort v. Aughe, 114 Ind. 77; City of Elkhart v. Calvert, 126 Ind. 
6; City of Huntington v. Pease, 56 Ind. 305; Shea v. City of Muncie, 148 Ind. 14; Green 
V. City of Indianapolis, 25 Ind. 490; Lake Erie, etc., R. Co. v. City of Noblesvilie, 16 
App. 20. 

The complaint should allege the acts done or omitted to be done by the defendant. 
It is not sufficient to allege "defendant, etc., did then and there violate" a certain sec- 
tion of a certain ordinance of the city. City of Huntington v. Pease, 56 Ind. 305. 

A complaint for violation of an ordinance must state the facts constituting such viola- 
tion. City of Huntington V. Pease, 56 Ind. 305; Lippman v. City of South Bend, 84 

Ind. 276. 

A complaint for violation of a city ordinance forbidding the maintenance of public 
nuisances, alleging that the defendant "kept a large quantity of hides, tallow and other 
substances which emitted a disagreeable odor," does not show sufficient facts, and is 
bad on motion in arrest of judgment. Lippman v. City of South Bend, 84 Ind. 276. 

Towns. — The above statute does not apply to towns, and in an action to recover a 
penalty for the violation of a town ordinance the complaint must exhibit or copy so 
much of the ordinance as relates to the subject. Clevenger v. Town of Rushville, 90 
Ind. 258; Wagner v. Town of Garrett, 118 Ind. 114. 

Pleading* and practice— Appeal.— Pleading and practice before the mayor is the 
same as before justices of the peace, and upon appeal from the mayor to the circuit 
court the cause may proceed according to the rules of pleading and practice before the 
justice of the peace. See aiite, §80, note. Berkey v. City of Elkhart, 141 Ind. 408, 
Wabash, etc., R. Co. v. Lash, 103 Ind. 80. 

When not necessary to plead— Evidence.- In an action against a railroad company, 
for an injury caused by negligence in running its cars, a copy of a city ordinance limit- 



§ 84 CITIES. 80 

ing the speed of trains need not be filed with the complaint, to authorize its introduc- 
tion in evidence; an averment of its existence is sufficient. Lake Erie, etc., E. Co. v. 
Hancock, 15 App. 104; Madison, etc., E. Co. v. Taffe, 37 Ind. 361; St. Louis, etc., E. 
Co. V. Mathias, 50 Ind. 65. 

A^liere a city ordinance is admitted in evidence without objection, and it has been 
admitted that it has been passed, the jury is justified in concluding that the ordinance 
was in force, though there was no proof of publication as required by law. Lake Erie, 
etc., E. Co. V. Brafford, 15 App. 655. 

Costs. — If on appeal the city is defeated it is hable for the costs. City of Kokomo v. 
Wills, 34 Ind. 48. 

Invalidity of ordinance — Defense. — The effect of the above statute is to require the 
defendant, if he claims that the particular sections, which he admits he violated, are 
invalid, to bring the matter of the invalidity forward by way of defense. City of Elk- 
hart V. Calvert, 126 Ind. 6; City of Frankfort v. Aughe, 114 Ind. 77. 

Enforcement of void ordinance— Injunction. — A court of equity may enjoin the en- 
forcement of a void city ordinance in order to prevent a multiplicity of actions, or at 
the instance of any person whose interests are to be injuriously affected thereby ; but 
if it is not void, a court of equity can not determine whether or not the plaintiff is 
guilty of its violation. Davis v. Fasig, 128 Ind. 271, 276; City of Eushville v. Eushville, 
etc., Co., 132 Ind. 575, 587. 

Entire ordinance must be void.— Unless the party asking an injunction points out 
some particular provision in the ordinance that infringes upon his rights or privileges, 
in order to justify a court in declaring the ordinance void, the ordinance must be void 
in toto. Davis v. Fasig, 128 Ind. 271, 276. 

Defenses. — In an action to recover a penalty for a violation of a penal ordinance, 
all defenses, except the statute of limitations, set off and matter in abatement, may be 
given in evidence without plea. Zorger v. City of Greensburg, 60 Ind. 1. 

Appeals — Jurisdiction. — In appeals from judgments in actions to recover penalties 
for the violation of ordinances the appellate court has jurisdiction of the appeal ; but if 
the validity of an ordinance is properly called in question in the lower court the juris- 
diction of an appeal is in the supreme court. City of Indianapolis v. Consumers' Gas 
Trust Co., 140 Ind. 107; Berkey v. City of Elkhart, 141 Ind. 408; City of Hammond v. 
New York, etc., E. Co., 126 Ind. 597; Lake Erie, etc., E. Co. v. City of Noblesville, 15 
App. 697. 

Prior to the creation of the appellate court, the supreme court had no jurisdiction of 
an appeal in an action to recover a penalty for a violation of a city ordinance, when the 
amount in controversy in such appeal, exclusive of interest and costs, did not exceed 
ten dollars. Dailey v. City of Indianapolis, 53 Ind. 483 ; Quigley v. City of Aurora, 50 
Ind. 28 ; Bogart v. City of New Albany, 1 Ind. 38 ; Cheny v. City of Shelby ville, 19 Ind. 
84; Donovan v. Town of Huntington, 24 Ind. 321. 

An appeal can not be prosecuted from a cause originating before a justice of the peace, 
or mayor of a city, on a penalty prescribed by city ordinance, when the amount in con- 
troversy, exclusive of interest and costs, is less than fifty dollars, where the validity of 
the ordinance is not in question. Griffee v. Tow^n of Summitville, 10 App. 332; Eidge 
V. City of Crawfordsville, 4 App. 513; Galbreath v. Trump, 83 Ind. 381; Lake Erie, etc., 
E. Go. V. Yard, 8 App. 199. 

An action to recover the penalty prescribed by the ordinance does not necessarily 
call in question the validity of the ordinance. Griffee v. Town of Summitville, 10 App. 
332. 

Jurisdiction upon appeal can not be conferred by consent of the parties. Eidge v. 
City of Crawfordsville, 4 App. 513. 

Construction of penal ordinances.— Penal ordinances, like penal statutes, are not 
always construed literally, and courts will make the necessary exceptions. City of 



81 INCORPORATION AND ORGANIZATION. § 84 

Indianapolis v. Consumers', etc., Co., 140 Ind. 107, 119; Donnell v. State, 2 Ind. 658; 
Nixon V. State, 76 Ind. 524. 

Ordinances should be construed reasonably ; courts will endeavor to sustain them 
rather than to overthrow them, and especially is this so when their validity depends on 
their being reasonable or otherwise. However, when they are highly penal in their 
character, they will be strictly construed. 1 Dillon Munic. Corp., § 420 n. 

The construction of municipal ordinances is governed by the same rules that are 
applied to statutes in similar cases. City of Indianapolis v. Consumers', etc., Co., 140 
Ind. 107; Zorger v. City of Greensburg, 60 Ind. 1; 1 Beach Pub. Corp., §§ 106 n., 517; 
Terre Haute, etc., E. Co. v. City of South Bend, 146 Ind. 239. 

Ordinances or by-laws with penalties are not penal statutes. The penalty is in the 
nature of liquidated damages. The strict rules by which the validity of penal statutes 
is tested do not apply to by-laws and ordinances except when they are highly penal. 
1 Dillon Munic. Corp., § 420 and n. 

As a general rule, and in absence of any special legislative restraint, strangers, as 
well as citizens, are bound by ordinances and by-laws of a municipal corporation. 
Horney v. Sloan, 1 Ind. 266. 

Willful violation of oi'dinance. — An ordinance which makes it a penal offense for a 
gas company to "willfully" refuse to lay gas pipes in a street when ordered by the 
common council is not violated by such company's refusal to lay such pipe, when such 
refusal is made in good faith, upon the ground that it is not physically and financially 
able to do so. City of Indianapolis v. Consumers', etc., Co., 140 Ind. 246. 

Penalty. — A provision in an ordinance fixing the penalty at a maximum amount is 
valid. Bills v. City of Goshen, 117 Ind. 221. 

Where the provisions of an ordinance regulating the speed at which railroad trains 
shall be run through the corporate limits of a city are violated by an engineer of a rail- 
road company the penalty may be recovered in an action against the company. City of 
Hammond v. N. Y., etc., R. Co., 5 App. 526. 

A city has no power to pass an ordinance creating a penalty in favor of the city for 
an injury to private property of a citizen. City of Goshen v. Crary, 58 Ind. 268 ; Lipp- 
man v. City of South Bend, 84 Ind. 276. 

A penal ordinance of a city, providing a punishment for wantonly injuring, or caus- 
ing to be injured, "any private or public property, or shade or ornamental trees," etc., 
does not authorize the city to maintain an action against the owner of a domestic animal 
which has voluntarily injured any such tree. City of Goshen v. Crary, 58 Ind. 268. 

Repeal — Effect on pending" prosecution. — "If, during the progress of a prosecution' 
the ordinance on which it is based is repealed, the prosecution must fail, unless the re- 
pealing ordinance contains some express provisions whereby all pending prosecutions 
are saved from its operations." Horr and Bemis Munic. Ords., § 63 ; Terre Haute, etc., 
R. Co. V. City of South Bend, 146 Ind. 239; 1 Beach Pub. Corp., § 519. 

Repeal of ordinance by implication.— Ordinances as statutes may be repealed by 
implication. Where a statute or ordinance covers the whole subject-matter of an older 
one, adds new provisions, prescribes different penalties, and is evidently intended to 
supersede and take the place of the prior statute or ordinance, the latter is repealed by 
implication. Terre Haute, etc., R. Co. v. City of South Bend, 146 Ind. 239. 

Statutory crimes and misdemeanors.— Unless the statute prohibits it a city may en- 
act ordinances providing for penalties for acts that are made crimes or misdemeanors 
by state law. Ambrose v. State, 6 Ind. 351 ; Williams v. City of AVarsaw, 60 Ind. 457; 
City of Hanmiond v. N. Y., etc., Co., 5 App. 535; Sloan v. State, 8 Blackf. 361. 

It is now provided by statute that whenever any act is made a public offense against 
the state and the punishment prescribed therefor, such act shall not be made punishable 
by any ordinance of any incorporated city or town. Any ordinance prescribing a pen- 
CiT. AND To.— 6 



§ 85 CITIES. 82 

alty in such case is null and void, and all prosecutions for any such public offense must 
be made under the state law only. City of Indianapolis v. Huegele, 115 Ind. 581 ; City 
of Hammond v. N. Y., etc., Co., 5 App. 535; City of Indianapolis v. Higgins, 141 
. Ind. 1. 

85. Imprisonment — Stay. — 20. If the penalty or forfeiture in 
which judgment is obtained be not paid or replevied, the defendant 
may be committed, for any period not exceeding thirty days, to the 
work-house of such city, or, if such city have no work-house, then to 
the county prison of the county in which such city is situated; and in 
the latter case, it shall be the duty of the person having charge of such 
prison to receive such defendant and obey the judgment of the city 
judge's or mayor's court in reference to him or her. And in default 
of payment or replevy of such judgment and costs, the defendant, un- 
less a female, may be adjudged and required to pay the same by manual 
labor in said work-house, or on the street or other public works of said 
city, under the control of the street commissioner or marshal of such 
city; for which labor such defendant shall be allowed, on such judg- 
ment and costs, seventy-five cents per day. It shall be the duty of 
such street commissioner or marshal, or such other officer as the com- 
mon council may direct, to work such defendant not less than six nor 
more than ten hours per day, according to the season, and each even- 
ing to return him to the custody of the keeper of such prison or work- 
house. Upon the full payment, as aforesaid, of the judgment and 
costs, such defendant shall be fully discharged. And such street 
commissioner or marshal is hereby authorized and required to perform 
all the duties herein prescribed, and to use all proper means thereto; 
and the common council are hereby vested with full authority to pass 
by-laws and ordinances for the purpose of compelling the enforcement 
of such manual labor by such defendant, by the use of sufficient force 
and means as they may deem right and proper. The keeper of such 
prison or work-house shall receive for the keeping, custody and board- 
ing of said defendant fifty cents per day, to be paid by such city upon 
the presentation of an itemized account therefor; and he shall receive 
only one commitment and one discharging fee. And such defendant 
may, at any time, replevy and pay such judgment and costs; and in 
case he has performed labor under such judgment, he shall be entitled 
to a credit for the same to the amount of labor performed, and the 
balance may be paid or replevied as aforesaid. R. S. 1894, § 3502. 

Statute construed. — The imprisonment provided for by above section is imposed for 
a failure to pay judgment for a penalty or forfeiture, and as a means of coercing such, 
payment, and not as a part of the penalty for the violation of a city ordinance. Quig- 
ley V. City of Aurora, 50 Ind. 28 ; Town of North Manchester v. Oustal, 132 Ind. 8, 

Said section contemplates two different modes of enforcing the payment of a judg- 
ment for a violation of a city ordinance, viz. : 

First. By imprisonment of the defendant, whether male or female, in the workhouse 
or city prison, for a period not exceeding thirty days, where the judgment remains un- 
paid or unreplevied ; and 

Second. By adjudging that the defendant, if a male, shall be required to pay the 



83 INCOKPOKATION AND ORGANIZATION. § 86 

judgment and costs by manual labor, he remaining in custody till the judgment has been 
paid or replevied. 

The thirty days' imprisonment is inflicted to enforce payment or replevy of the judg- 
ment, but does not operate as a payment of the judgment, and must be computed con- 
tinuously from the date of the judgment. Flora v. Sachs, 64 Ind. 155; Torbert v. Lynch, 
67 Ind. 474. 

A rearrest of the defendant after the thirty days from the date of the judgment, he 
having escaped, is unlawful. Flora v. Sachs, 64 Ind. 155. 

A defendant against whom, for a violation of a city ordinance, a fine has been as- 
sessed, and a simple judgment of imprisonment until the fine and costs are paid has 
been rendered, can not be compelled to pay the same by manual labor on the streets, 
and, if compelled to do so, he can maintain an action for damages for false imprison- 
ment. Torbert v. Lynch, 67 Ind. 474. 

If a defendant works out a judgment including costs, it having been adjudged that he 
do so, in default of paying or replevying the judgment and costs, the city does not be- 
come liable to the officers in whose favor costs were taxed for the payment of such costs. 
The docket fees to which the city attorney is entitled are to be charged up as costs 
against the defendant and the city is not liable for such costs where the judgment and 
such costs are so paid by manual labor. Tuley v. City of Logansport, 63 Ind. 508; Flora 
V. Sachs, 64 Ind. 155. 

A penalty for the violation of a town ordinance is not a debt, in the sense of the con- 
stitution, which forbids imprisonment for debt. Llardenbrook v. Town of Ligonier, 95 
Ind. 70. 

A city is liable for the expense of receiving, boarding and discharging a prisoner con- 
victed of a breach of a provision of its charter or by-laws and confined in the county 
jail. Board, etc., v. Chissom, 7 Ind. 688. 

If such prisoner is committed to the custody of the keeper of the county prison a short 
time before midnight, and is discharged a short time after that hour, the city can not 
properly be charged with two days' boarding therefor. City of Indianapolis v. Parker, 
31 Ind. 230; Pressley v. Board, etc., 80 Ind. 45. 

In 1856, under laws in force in 1863, a town which had adopted the provisions of the 
statute for the incorporation of cities, had the right to use the county jail as the town 
had before being incorporated as a city. Board, etc., v. City of Lafayette, 7 Jnd. 614. 

86. Clerk's duties — ETideace — Fees. — 21. The clerk shall have 
the custody of all books and papers belonging to such municipal cor- 
poration. He shall make record of all proceedings of the common 
council, whose meetings it shall be his duty to attend. He shall 
countersign and register all licenses and permits, and all other official 
papers of the common council directing acts to be done or duties to 
be performed; and he shall do all other things required by the com- 
mon council and pertaining to his office. Copies and transcripts from 
the records, certified by him under the corporate seal, shall be evidence 
of the matters therein contained in all courts of this state; and he 
shall be entitled to receive therefor, except when otherwise ordered by 
the common council, the same fees that are allowed to the clerk of the 
circuit court for similar services. R. S. 1894, § 3503. 

City clerk— Office.— The office of city clerk is not an ottico " under the state," within 
the meaning of § 16, art. 7, of the constitution of Indiana, and otie who has been elected 
to the office of justice of the peace, and has qualilied and entered on the duties of said 
office, is not ineligible to the office of city clerk during the term for which lie was 



§ 87 CITIES. 84 

elected justice of the peace. Mohan v. Jackson, 52 Ind. 599; Chambers v. State, 127 
Ind. 365; State v. Denny, 118 Ind. 382. 

Duties. — It is the duty of the clerk to attend all meetings and make record of all pro- 
ceedings of the common council. State v. Curry, 134 Ind. 133. 

Nunc pro tunc entry. — Where the city clerk has failed to keep the record of the yeas 
and nays upon the adoption of a resolution by the common council, the proper remedy 
is for the common council to cause a nunc pro time entry of the yeas and nays to be 
made. City of Logansport v. Crockett, 64 Ind. 319 ; Chamberlain v. City of Evans- 
ville, 77 Ind. 542; City of New Albany v. Endres, 143 Ind. 192. 

Act of municipal body— Evidence. — The only competent evidence of any act or pro- 
ceeding of a municipal body upon which the members of the corporate body are re- 
quired to vote, is the record of the proceedings. Byer v. Town of Newcastle, 124 Ind. 
86; City of Logansport v. Crockett, 64 Ind. 319; State v. Curry, 134 Ind. 133. 

Parol evidence. — The minutes of the common council are only evidence of their pro- 
ceedings and actions ; if no minutes or records have been kept the proceedings and 
actions of the council may be proved by parol evidence, like any other facts. State v. 
Hauser, 63 Ind. 155 ; Eoss v. City of Madison, 1 Ind. 281 ; School Town of Princeton v. 
Gebhart, 61 Ind. 187 ; City of Logansport v. Dykeman, 116 Ind. 15. 

If the records kept by the clerk have been destroyed the proceedings may be proved 
by parol evidence. City of Delphi v. Evans, 36 Ind. 99. 

Parol evidence of the proceedings of a city council, and of the declarations of indi- 
vidual members thereof, in ordering the grade of a street, or in proceedings for con- 
demnation of real estate, is not admissible until some valid excuse is shown for not 
producing the record of such proceedings. City of Aurora v. Fox, 78 Ind. 1 ; Byer v. 
Town of Newcastle, 124 Ind. 86. 

The record of proceedings kept by the city clerk is competent evidence to prove that 
a street is under the control of the city. City of Huntington v. Mendenhall, 73 Ind. 
460. 

The record of the proceedings of the common council, showing the report of a com- 
mittee appointed by it, and the action taken thereon, is admissible in evidence against 
the city. City of Delphi v. Lowery, 74 Ind. 520. 

City council proceeding's— Sewer assessment— Evidence— Appearance— Waiver.— 
In an action to enforce a sewer assessment lien it was not error to admit in evidence, 
over defendant's objection, because of certain descriptions therein and misnomer of de- 
fendant, the transcript of proceedings of the city council upon which the alleged lien 
was predicated, where it appears that during the proceedings before the council, which 
resulted in the assessment of benefits, for which the lien is sought to be enforced, and 
before the same were finally settled and confirmed upon the report of the civil engineer, 
the defendant, by its attorneys, made a full appearance to the proceedings and filed a 
lemonstrance, no objection then being offered to the description and alleged misnomer. 
Such facts constituted a waiver to the objection, even if it ever had any merits. Lake 
Erie, etc., E. Co. v. Bowker, 9 App. 428. 

87, Orders— Clerk's duties. — 22. The clerk shall draw all orders 
upon the treasury of such city, which shall be signed by the mayor 
and countersigned by him; but no order shall be drawn upon the 
treasury except upon an allowance made by the common council, or 
when the same is fixed by law or the ordinances of such city. He 
shall keep a register of orders and a register of receipts issued or re- 
ceived by him, so that no two receipts or orders shall bear the same 
number; the said books, to be styled a "Register of Orders" and a 
* 'Register of Receipts," shall be furnished by the common council at 



85 INCORPORATION AND ORGANIZATION. § 88 

the expense of the city. He shall properly file and keep documents 
belonging to said city and appertaining to his office; and deliver the 
same, with all other things belonging to his office, to his successor, 
as soon as such successor is qualified. The clerk shall, in proper 
books to be furnished him, open separate accounts for special and 
general funds, expenditures, salaries of officers, contracts for work, or 
other service done for the city, exhibiting therein all receipts, dis- 
bursements, and appropriations upon each account, and the vv^hole 
amount of receipts and expenditures in one general account. R. S. 
1894, § 3504. 

City clerk— Bond— Sureties— Warrant— Liability.— If a city clerk, under color of 
his office, fill up and sign city orders which have been signed in blank by the mayor, 
and make them payable to himself, present them to the treasurer, and procure the 
money thereon, when nothing is due him from the city, this constitutes a breach of his 
official bond, for which his sureties are liable. Armington v. State, 45 Ind. 10. 

Cit}^ warrant— Contract— Consideration. — A city order on its treasurer for the pay- 
ment of money is a contract ; and, in an action thereon by the holder, a plea of want of 
consideration is good. City of Connersville v. Connersville Hydraulic Co., 86 Ind. 235 ; 
City of Connersville v. Connersville Hydraulic Co., 86 Ind. 184. 

A city, incorporated under the general laws of the state, may be sued upon a warrant 
drawn upon its treasurer by the proper officers, by the holder thereof, and he need not 
proceed by mandate, nor is it necessary, to entitle the holder thereof to recover, that he 
should show that the city treasurer had funds with which to pay it, or that he indorsed 
it "not paid for want of fimds." City of Connersville v. Connersville Hydraulic Co., 

86 Ind. 184. 

City warrant — Taxes. — Where, in an action upon a city order by the holder, the city 
answers, by way of set-off, that he is indebted to the city for taxes in a certain sum, 
but fails to allege any facts showing his or his property's liability to taxation, or the 
city's authority to levy and collect taxes, such answer is insufficient on demurrer. City 
of Connersville v. Connersville Hydraulic Co., 86 Ind. 235. 

Xotice. — ^^Tiere notice is required to be given by a city to terminate a contract, one 
given by a councilman, without authority from the common council, is not sufficient. 
But a notice given by the city clerk, thereunto ordered by the common council, is suf- 
ficient. City of Indianapolis v. Bly, 39 Ind. 373. 

The city clerk is the proper city officer, under R. S. 1894, §8672, to give notice to per- 
sons whose property has been omitted to be assessed for municipal purposes. City of 
Delphi v. Bo wen, 138 Ind. 235. 

88. Duplicate tax list.-— 23. The clerk shall, annuall}^, between 
the first Monday of June and the fifteenth of November, make out a 
duplicate list of taxes assessed in such incorporated city in the same 
manner that duplicate lists of taxes are made out by county auditors, 
and shall cause a copy of such duplicate list to be delivered to the city 
treasurer on or before the fifteenth day of November of each year; and 
in all matters pertaining to the making up of such duplicate tax lists, 
and the assessment of taxes thereon, and in the manner of entering 
property returned delinquent for taxes, he shall be governed by the 
laws defining the duties of county auditors, so far as the same maybe 
applicable, and not otherwise herein provided; and he shall deliver the 
same, with a warrant, under the corporate seal of said city, attached 
thereto, to the treasurer of said city, directing him that of the goods 
and chattels of all and every person named in said duplicate, and of 



§ 89 CITIES. 86 

all persons whose names may be added thereto by him, he shall cause 
to be made, by distress and sale if necessary, the amount of tax 
charged against each of said persons named in said duplicate, and 
make report of his doings in the premises by the third Monday in 
March next following, and make full return, report, and final settle- 
ment thereof by the first Monday of August next following. R. S. 
1894, § 3505. 

See Art. 3, Taxation, post, § 212, et seq. 

Tax duplicate and warrant— Treasurer's authority.— The tax duplicate and the 
warrant attached thereto, constitute the city treasurer's authority for enforcing the pay- 
ment of taxes by seizure and sale of property, and, taken together, confer on him the 
same power to seize and sell personal property as is conferred by an execution by a 
sheriff ; but the duplicate, unaccompanied by the warrant, is not sufficient. AVise v. 
Eastham, 30 Ind. 133. 

Injunction — Illegral tax. — In an action against the treasurer, to enjoin the collection 
of a tax alleged to have been illegally assessed by the assessor, the complaint must 
show that the assessment was placed upon the tax duphcate, that the duplicate is in 
the hands of the treasurer, and that he is threatening to collect the tax. Pugli v. Irish, 
43 Ind. 415; Anthony v. Sturgis, 86 Ind. 479. 

Illeg-al annexation of territory— Cases dlsting-uislied.- Where the complaint states 
facts sufficient to show a right to have a municipal corporation restrained from exer- 
cising corporate powers over territory not legally annexed to the city, the pleading is 
not bad because it omits to aver that the treasurer had the tax duplicate in his hands. 
The cases of Wise v. Eastham, Anthony v. Sturgis, and Pugh v. Irish, supra, distin- 
guished. Welch V. State, 104 Ind. 347. 

Duplicate leg-al on its face— Effect.— Where the duplicate in the hands of the treas- 
urer is legal on its face, it is not necessary for him to show a legal assessment of the 
taxes. Adams v. Davis, 109 Ind. 10; Ewing v. Eobeson, 15 Ind. 26; Noland v. Busby, 
28 Ind. 154; Hazzard v. Heacock, 39 Ind. 172. 

Presumption. — It will be presumed, in the absence of any showing to the contrary, 
that specified taxes were placed upon the duplicate in the treasurer's hands by -the 
proper officer. Adams v. Davis, 109 Ind. 10. 

89, Assessor's duties. — 24. Each city assessor shall, on or before 
the first Monday in June of each year, unless otherwise directed by 
the common council, make and deliver to the city clerk of his city, 
in tabular form and alphabetical order, a list or lists of the names of 
all persons, companies or corporations in whose names any personal 
property, moneys, credits or other taxables shall have been by him 
listed in his city, on which list or lists he shall enter separately, in 
appropriate columns, opposite each name, the several species of per- 
sonal property and taxables required by law to be taxed for state and 
county purposes, as attested by the person required to list the same, 
or as determined by the assessor; and he shall also make a separate 
list of such other property or thing as the common council in their 
ordinances direct to be specially taxed; the columns shall be accurately 
added up. And in every case where any person whose duty it is made 
by law to list any personal property or other taxables for taxation for 
the state and county purposes shall refuse to make out and return the 
lists of personal property and taxables, the assessor shall enter, in an 
appropriate column, the words ''refused to list;" and in every case 



87 INCORPORATION AND ORGANIZATION. § 90 

^'liere the person required to list personal property for taxation shall 
refus€ to take and subscribe the oath or affirmation required of him 
by this act in regard to the truth of his statement, the assessor shall 
enter, in an appropriate column, the words "refused to swear;" and 
in every case where any person required to list property for taxation 
shall have been absent, or unable from sickness to list the same, the 
assessor shall enter opposite his name the word ''absent" or ''sick." 
Said assessment shall be completed at the time above indicated, and 
return made thereof to the clerk of the city, unless, by an order of 
the common council, further time be given him. He may, with the 
concurrence of the common council, appoint one or more assistants, 
who shall be sworn, in like manner as other officers, to well and faith- 
full}" perform the duties thereof. Such assessor and assistants shall 
have the same powers, and be subject to the same provisions of the 
same laws as the assessor of personal property for state and county 
purposes. But if, at any time, any town or city adopting this act 
shall have no assessor except the one elected on the first Tuesday in 
May as aforesaid, then it shall be lawful for the common council to 
appoint an assessor, who shall qualify as if elected, and shall assess 
for the year commencing on the first Monday in January next preced- 
ing such appointment; and the assessor elected at a regular election as 
aforesaid shall assess, as herein required, for the year commencing on 
the first day of January following such election. Such assessor shall, 
at the time he is required by this act to make return of taxable prop- 
erty to the city clerk, also deliver to him all the statements of property 
which he shall have received from persons required to list the same, 
arranged in alphabetical order, corresponding with his list or lists, 
and the clerk shall carefully preserve the same in his office. R. S. 
1894, § 3506- 

Assessment of bank stock. — If bank stock is assessed in the name of the bank in- 
stead of that of the stockholders, the lien of the taxes assessed is not thereby affected. 
Small V. City of Lawrenceburgh, 128 Ind. 231. 

90. Assessor's duties. — 25. Each city assessor shall annually (ex- 
cept when the real estate is appraised), at the time of taking lists of 
personal property, also take a list of all real estate situate in his city 
that shall have become subject to taxation since the last previous list- 
ing of property therein, with the value thereof, estimated agreeably 
to the laws regulating the duties of appraisers of real estate; and all 
new improvements, buildings, or other structures of any kind, the 
value of which shall not have been previously added to or included 
in the valuation of the lands on which such improvements have been 
made or structures erected; and shall make return thereof to the city 
clerk at the same time that he is required by this act to make return 
of personal property; in which return he shall set forth the parcel of 
real property on which each of such improvements shall have been 
made or structures erected, and the true value added to such parcel of 
real estate by the making of such improvement or the erection of such 
structure. And the additional sum which it is believed the land on 



§ 91 CITIES. 88 

which the improvement shall have been made or structure erected will 
sell for at private sale, in consequence thereof, shall be considered the 
value of such improvement or structure. And in case of destruction 
by fire, flood, or otherwise, of any improvement, building, or struc- 
ture of any kind which shall have been made or erected previous to 
the last valuation of the land on which the same shall have been added 
to an}^ former valuation of such land, the assessor shall determine, as 
nearly as practicable, how much less such land would sell for at pri- 
vate sale in consequence of such destruction, and make return thereof 
to the city clerk, as in this section before provided in relation to im- 
provements made or structures erected. R. S. 1894, § 3507. 

By § 254, act of 1891, E. S. 1894, § 8672, the office of city assessor and city boards of 
equalization are abolished. See post, § 216; also §§354 and 1056. 

91. Civil engineer's duties. — 27. The civil engineer shall prepare 
plans, specifications and estimates when thereunto directed by the 
common council, of proposed public improvements, and shall superin- 
tend the opening of streets and the preservation of the true lines 
thereof, and perform all other duties appertaining to his office when 
directed by the common council. And such engineer shall have ex- 
clusive jurisdiction to survey, determine, establish and perpetuate the 
lines and corners of all lots, blocks, parcels of lands and subdivisions 
thereof, within the limits of such city. He shall make a record of 
all such surveys, as the county surveyor is now required to do; and 
such record, or certified copies thereof, shall have the same force and 
effect as the record of surveys made by the county surveyor has; and 
from all such surveys an appeal may be taken, as provided for appeals 
from surveys made by the county surveyor: Provided, That when the 
city authorities have once established the grade of any street or alley 
in the city, such grade shall not be changed until the damages occa- 
sioned by such change shall have been assessed and tendered to the 
parties injured or affected by such change, and such damages shall be 
collected by the city from the party or parties asking such change of 
grade in the manner provided for the collection of street improv- 
ments. R. S. 1894, § 3508. 

Chang'e ol grade. — See post, § 218, note, Improvement of streets — Fixing and chang- 
ing grade. 

Removal of city eng'ineer.— See ante, § 59a. 

Repealed as to cities of 100,000. — This section as to cities of more than one hundred 
thousand population was repealed by act of March 6, 1891, commonly designated as the 
charter of the city of Indianapolis. Hirth v. City of Indianapolis, 18 App. 673. 

Chang'e of grade of street. — A city may not change a street grade legally estabUshed 
by it, without first assessing and paying, or tendering, the damages occasioned by such 
change, to the abutting property owner. City of Logansport v. Pollard, 50 Ind. 151; 
City of Kokomo v. Mahan, 100 Ind. 242; City of Lafayette v. Wortman, 107 Ind. 404; 
aty of Lafayette v. Nagle, 113 Ind. 425; City of Anderson v. Bain, 120 Ind. 254; City 
of Valparaiso v. Adams, 123 Ind. 250; City of Jeffersonville v. Myers, 2 App. 532; City 
of Huntington v. Griffith, 142 Ind. 280, 282; Keehn v. McGiilicuddy, 15 App. 580; 
Stein V. City of Lafayette, 6 App. 414. 



89 INCORPORATION AND ORGANIZATION. § 91 

May chailg'e town gTade.— A city is not liable for damages arising from the estab- 
lishment of a street grade in conflict with a grade established by a former town corpo- 
ration, embracing the same territory. City of AVabash v. Alber, 88 Ind. 428; City of 
Huntington v. Griffith, 142 Ind. 280, 282. 

Abuttiug" lot owner — Damag'es.— An abutting lot owner is not entitled to recover 
damages resulting from the original grading of a street, but to entitle him to damages 
on account of the grading of a street he must show that there was a prior established 
grade, and that the damages for which he sues were caused by a change therein. City 
of Lafayette v. Nagle, 113 Ind. 425; City of Anderson v. Bain, 120 Ind. 254; Keehn v. 
McGilhcuddy, 15 App. 580. 

Gfracle — How established. — Until proceedings are had by the common council direct- 
ing that the grade of a certain street or streets, or specified portions thereof, shall be 
estabhshed, or that a grade already established is approved and adopted in some authori- 
tative way by the common council, it can not be deemed that the city authorities have 
once estabhshed the grade of the street. Mattingly v. City of Plymouth, 100 Ind. 545; 
City of Valparaiso v. Adams, 123 Ind. 250. 

Adoption of town g'rade. — The acceptance of a city charter does not impliedly w^ork 
an adoption, by the city, of street grades established by a former town, in the sense 
that, under the statute creating a liability, the city may not establish a grade, and the 
adoption by the city of a prior town street grade, essential to the right of a property 
owner to recover damages for an alleged change of grade, should be shown by proof of 
authoritative acts and proceedings of the common council, in adopting such former town 
grade. City of Huntington v. Griffith, 142 Ind. 280. 

Constitutional and statutory liability. — Cities and towns, however, are not liable 
for consequential damages necessarily caused in changing the grade of a street, pre- 
viously established, except they are made liable by some statute, the constitution or by 
the charter of incorporation. City of Valparaiso v. Adams, 123 Ind. 250; Snyder v. 
Town of Rockport, 6 Ind. 237; Baker v. Town of Shoals, 6 App. 319; Macy v. City of 
Indianapolis, 17 Ind. 267 ; City of Seymour v. Cummins, 119 Ind. 148 ; City of Lafayette 
V. Nagle, 113 Ind. 425; 1 Beach Pub. Corp., §§ 662, 747; Elliott Roads and Streets, pp. 
336, 344; 2 Dillon Munic. Corp., §§ 686, 989, et seq. 

Liability for neg'lig'ence. — But municipal corporations are liable, without reference 
to such statutory or constitutional provisions, for injuries to the property of citizens by 
reason of the negligent manner in which the work is done in grading and improvement 
of streets. Baker v. Town of Shoals, 6 App. 319 ; City of Jeffersonville v. Myers, 2 App. 
532; Town of Princeton v. Geiske, 93 Ind. 102; City of North Vernon v. Voegler, 103 
liid. 314; City of Lafayette v. Wortman, 107 Ind. 404; 1 Beach Pub. Corp., § 662; 
Elliott Roads and Streets, p. 336. 

Property damag'ed beyond city limits.— The provisions of the above section, that 
when the grade of a street has been once established it shall not be changed without 
first assessing and tendering the damages occasioned by the change, refers to damages 
as well to property outside of the city limits as to that inside. City of Columbus v. 
Hydrauhc, etc., Co., 33 Ind. 435; City of Evansville v. Decker, 84 Ind. 325. 

Sidewalks — Chang-e of g-rade. — The word "street" embraces sidewalks, and the 
statute requiring compensation for damages resulting from a change of grade applies to 
changes in the grade of a sidewalk. City of Kokomo v. Mahan, 100 Ind. 242; Dooley 
V. Town of Sullivan, 112 Ind. 451; Wiles v. Hoss, 114 Ind. 371; Town of Rosedale v. 
Ferguson, 3 App. 696 ; Taber v. Grafmiller, 109 Ind. 206. 

Complaint — Averments. — A complaint in an action for damages for change of grade 
is bad where it contains no allegation that a grade has been legally established, and 
that a change was made in the grade without first assessing the damages occasioned 
thereby. City of Valparaiso v. Adams, 123 Ind. 250; Mattingly v. City of Plymouth, 
100 Ind. 545. 



§ 91 CITIES. 90 

Where the ordinance set out in a complaint for damages for a change in the grade of 
a street is a general one and fixes the grade at the crossings of the street surrounding 
plaintiff's property, taken in connection with the averment that the street was graded 
in accordance with such established grade, the complaint sufficiently shows a previously 
established grade. Keehn v. McGilhcuddy, 15 App. 681. 

Injunction. — The abutting property owner may maintain an injunction to restrain 
the municipal authorities from proceeding to change the grade previously established 
until the damages are assessed and tendered as provided by the statute. City of Ko- 
komo V. Mahan, 100 Ind. 242; City of Logansport v. Pollard, 50 Ind. 151; City of Co- 
lumbus V. Hydraulic, etc., Co., 33 Ind. 435. 

But when the work has been nearly completed, injunction will not be granted. City 
of Columbus V. Storey, 33 Ind. 195. 

Special damag'es. — To entitle the property owner to recover damages for a change 
of grade, the injury sustained must be special, and not merely such as the public may 
suffer. City of Lafayette v. Nagle, 113 Ind. 425 ; Elliott Eoads and Streets, pp. 344, 
345. 

Damag'es recoverable — Improvements.— All damages, both past and prospective, 
that will result by a change of grade, must be recovered in an action, and improve- 
ments made in accordance with the old grade may be considered in fixing the damages. 
City of Lafayette v. Nagle, 113 Ind. 425 ; City of North A^ernon v. Voegler, 103 Ind. 
314; Elliott Eoads and Streets, pp. 344, 345. 

The owner of the property at the time of the change of grade is the proper person to 
assert a claim for damages for such change of grade. His subsequent grantee can not 
recover. Stein v. City of Lafayette, 6 App. 414. 

Orig'inal grading* — Neg^lig'ence, — A city is not liable for consequential damages 
caused by an original grading and improvement of its streets, unless the work be negli- 
gently performed, in which case it is liable for the injury caused by its negligence. City 
of Jeffersonville v. Myers, 2 App. 532; Davis v. City of Crawfordsville, 119 Ind. 1; City 
of Valparaiso v. Adams, 123 Ind. 250; City of Wabash v. Alber, 88 Ind. 428. 

Discretion. — The municipal authorities have discretionary power to determine when a 
change of grade is necessary, but the power to cause a change is subject to the provi- 
sions of the above section respecting the assessment and tender of damages. City of Jef- 
fersonville V. Myers, 2 App. 532; City of Kokomo v. Mahan, 100 Ind. 242. 

Assessment of damag'es. — If the established grade of a street or alley be changed by 
the city, without first having the prospective damages assessed and tendered, this, under 
the above section, is an unlawful act and an affirmative wrong, for which damages may 
be recovered by any person whose property may thereby be injured. City of Lafayette 
V. Wortman, 107 Ind. 404; City of Lafayette v. Nagle, 113 Ind. 425. 

Grade— How established — Ordinance— Record. — The grade of a street which can 
not be changed without the assessment and tender of damages occasioned thereby is a 
grade established in pursuance of some ordinance or order of the common council 
involving some general plan of improvement or grading of a street, or specified portion 
thereof. And such grade, when established, must be approved and adopted in some 
way by the common council, and should be made a matter of record. The record of 
the survey establishing the grade should appear in the record which the civil engineer 
is required to keep ; and the proceedings of the council should, in some way, either by 
ordinance or resolution, show that the survey establishing the grade was authorized or 
approved so as to make it authoritative. The records and files pertaining to these pro- 
ceedings should be produced in evidence under proper averments in the complaint, and 
unless these are shown to have been lost or destroyed no other proof is admissible. 
Mattingly v. City of Plymouth, 100 Ind. 545 (citing Nebraska City v. Lampkin, 6 Neb. 
27) ; City of Valparaiso v. Adams, 123 Ind. 250; City of Aurora v. Fox, 78 Ind. 1. 

Estoppel of corporation as to establishment of g-rade.- The fact that an ordinance 



91 INCORPORATION AND ORGANIZATION. § 91 

requires all sidewalks to be built in conformity with the grade of the corresponding 
street, and makes it the duty of the street commissioners to oversee the construction 
and maintenance of all sidewalks, and requires all persons, before laying a sidewalk, 
to apply to the city engineer for the proper grade, and to construct the proposed side- 
walk in accordance with the grade as given by him, and the fact that one who does so 
apply makes such improvement according to the direction of the engineer, where the 
street has not been established by the steps specified in previous note, do not estop the 
city from establishing a different grade for the street without the assessment and tender 
of damages. Nor does the fact that the committee on streets, with the city engineer, 
directed the owner where to place the sidewalk, estop the city. Mattingly v. City of 
Plymouth, 100 Ind. 545. 

Town not liable— Chang-e of grade.— The proviso to the above section has no apph- 
cation to an incorporated town. The town is not liable to an abutting property owner 
for consequential damages resulting to the property by a change of an established grade. 
Baker v. Town of Shoals, 6 App. 319. 

Cliang"e of gTade — Not a taking' of property.— Consequential injuries resulting from 
a change in the grade of a street do not constitute a taking of private property for a 
public use within the meaning of the constitution, and a property owner can only claim 
damages for such injuries in cases where the right to damages is given by statute. City 
of Kokomo V. Mahan, 100 Ind. 242 ; Weis v. City of Madison, 75 Ind. 241 ; City of La- 
fayette V. Bush, 19 Ind. 326; City of Delphi v. Evans, 36 Ind. 90. 

Common council — Chang'e of gfrade. — Common councils of cities may, of their own 
motion, by a two-thirds vote, change the grade of streets, pay the damages occasioned 
out of the city funds, and re-improve the street at the expense of the property owners 
on the line of the improvement. City of Lafayette v. Fowler, 34 Ind. 140. 

Witnesses — Opinion — Damag'es.— In an action by a lot owner for damages resulting 
from a change of grade, it is competent to take the opinion of witnesses as to the value 
of the property before and after the change was made. It is not necessary that the 
witness should be an expert, but if it appears that he has an acquaintance with the 
value of property in the vicinity, his opinion is competent. City of Lafayette v. Xagle, 
113 Ind. 425. 

Improvements with reference to g^rade. — The fact that improvements have been 
m^ade to correspond with the old grade may be considered in an action to recover dam- 
ages for a change of grade. City of Lafayette v. Nagle, 113 Ind. 425. 

Liability for acts of contractor— Encroachment npon abutting' land.— A city which 
is not negligent in making a plan for raising the grade of a street is not liable for the 
act of an independent contractor in making the slope for the grade on the land of an 
abutting owner. City of Bloomington v. Wilson, 14 App. 476; Kinser v. DeWitt, 7 
App. 597. 

Estimate — Mandate. — As to the manner and the basis upon which an estimate is to be 
made under this section, the engineer is subject to the orders of the common council. 
Until after such direction by the common council, and a disobedience by the engineer, 
theie is no occasion for the engineer to be made a party to a mandamus proceeding to 
compel the making of an estimate. The mandate lies against the city as a corporation. 
Wren v. City of Indianapohs, 96 Ind. 206. 

Eng"ineer's duties. — It is the statutory duty of the city civil engineer to prepare plans 
and specifications of proposed street improvements, and it will be presumed that he 
prepares them in proper time and in conformity to the ordinances. Such plans and 
specifications are competent evidence in a suit to collect a street assessment. Taber v. 
Grafmiller, 109 Ind. 206; Taber v. Ferguson, 109 Ind. 227. 

Street improvement estimates.— The city civil engineer is the proper othcer to make 
the estimate and apportion the costs to each lot or tract of land in street improvement 
proceedings. Eeeves v. Grottendick, 131 Ind. 107; Eay v. City of Jeffersonville. 90 
Ind. 567 ; Van Sickle v. Belknap, 129 Ind. 561. 



§ 92 CITIES. 92 

Estimate prima facie correct.— The estimate by the city engineer is deemed prima 
facie correct, and the party who assails it assumes the burden of impeaching it. Van 
Sickle V. Belknap, 129 Ind. 561 ; Elliott Eoads and Streets, p. 430. 

92. Street commissioner's duties. — 28. It shall be the duty of the 
street commissioner, under the direction of the common council, to 
superintend the streets, alleys, market places, landings; the construc- 
tion, repairing, cleaning, and lighting the same; the building of sewers 
and drains; the purchase of the necessary implements of labor, and 
the employment of laborers; and shall perform all the other duties in- 
cident to his office: Provided, He shall have no power to contract for 
any debt or liability against the city, unless specially authorized so to 
do by an order, resolution, or ordinance of the common council, made 
in accordance with the powers vested in such council by this act. 
R. S. 1894, § 3509. 

Removal. — The common council may, by a majority vote, remove and dispense with 
the street commissioner and require the marshal to perform his duties. City of Madi- 
son V. Kelso, 32 Ind. 79; City of Madison v. Korbly, 32 Ind. 74; State v. Sohn, 97 Ind. 
101. 

An order of the common council dispensing vdth the services of the street commis- 
sioner is a removal from office. When this is done and the officer is then reappointed, 
his term of office commences from the time of his reappointment. State v. Sohn, 97 
Ind. 101. 

The common council of a city, while the street commissioner remains in office, can not 
direct that his duties be performed by any other officer. Mitchell v. Wiles, 59 Ind. 364, 

Notice to street commissioner— Notice to city.— Notice to the street commissioner 
of a defective street is notice to the city. City of Lafayette v. Larson, 73 Ind. 367 ; 
Turner v. City of Indianapohs, 96 Ind. 55. 

Liability. — The street commissioner is liable to an employe of a city, who is under 
the direction and control of the street commissioner, when the employe is injured in 
the performance of an act directed by the commissioner, when such injury is the result 
of the commissioner's negligence, and the employe is himself w^ithout fault. City of 
Lebanon v. McCoy, 12 App. 500. 

93. Marshal's duties and powers.— 29. The marshal shall be the 
chief ministerial officer of the corporation. He shall be a conservator 
of the peace within his city, and shall arrest, without process, all per- 
sons who within his view, shall commit any crime or misdemeanor or 
violate any ordinance of such city, take them before the mayor or 
other officer having jurisdiction of the offense with which such person 
is charged, and detain them in custody until the cause of such arrest 
has been investigated; suppress all breaches of the peace within his 
knowledge, hereby giving to him authority to call to his aid the 
power of the city; pursue and commit to jail all felons and persons 
guilty of misdemeanors or violations of the ordinances of such city. 
He shall execute and return all process directed to him by the mayor 
or city judge, or by order of the common council, either in person or 
by deputy; attend upon and preserve order in the mayor's court and 
in justice's court within his city, in all cases wherein he has served 
the writ or process to bring such party into court; and, in addition to 
the powers herein vested in such marshal, he may, without any writ 



93 INCOKPORATION AND ORGANIZATION. § 94 

or order of attachment, confine any person or persons guilty of any 
offense against the penal laws of the state of Indiana or ordinances of 
such city in the city watch-house or prison, or county jail (if such 
arrest be made when the court having jurisdiction of the offense with 
which such person is charged shall not be open or in session), until 
there shall be an opportunity to bring such defendant before the 
mayor, if for violation of the ordinances of such city, or before a jus- 
tice of the peace or mayor, if for violation of the penal laws of the 
state, which it is his duty to do at the earliest practicable time. But 
no person shall be detained in custody more than eighteen hours, un- 
less by order of the mayor or a justice of the peace, upon affidavit and 
writ charging such person with some offense. R. S. 1894, § 3510. 
See post, § 276. 

[Acts 1881 S., p. 109. Tffi f.®rpe April 9, 1881.] 

94. Has constables' powers. — 1. City marshals shall have, in ad- 
dition to the powers they now possess, the jurisdiction and powers of 
constables in their respective counties. R. S. 1894, § 3511. 

95. Same fees as constables. — 2. City marshals shall be entitled 
to the same fees as constables, as well while acting in the capacity of 
marshal as constable. R. S. 1894, § 3512. 

Constables' powers— Acts throug-hout county— Citizens to aid.— Constables, in the 
discharge of their duties, shall have power to act throughout their respective counties, 
unless restrained by law ; and, whenever necessary, may call upon any number of citizens 
to assist them in the discharge of their duties, who shall not refuse such assistance, 
under such penalty as may be prescribed by the criminal law. R. S. 1894, § 8054. 

Mittimus — Receipt. — A^Tienever any constable shall commit to jail any prisoner in 
his custody, he shall leave with the jailer the writ by authority of which he commits 
such prisoner ; and such jailer shall give him a receipt therefor, containing at length a 
copy of such writ. R. S. 1894, § 8055. 

When may arrest fugitive. — In executing a w^arrant for the apprehension of any fu- 
gitive from justice Avho has fled into another county from any county in this state, a 
constable may arrest such offender in any county where he may be found ; but if such 
offender shall request it, he shall not remove him from such county without taking him 
before some officer authorized to issue and try writs of habeas corpus, and giving such 
offender time to make apphcation for such writ. R. S. 1894, § 8056. See R. S. 1894, 
§ 1694. 

For further powers and duties of constables see R. S. 1894, §§ 1506, 1510, 1542, 1576, 
1579, 1580, 1582, 1596, 1616, 1637, 8050. 

Constables' fees.— Constables shall receive fees as follows : 

For serving a summons or warrant on each person named therein, twenty-five cents. 

For copy of the process left at residence of defendant, twenty-five cents. 

For serving subpena for each person named therein, twenty-five cents. 

For returning each writ, ten cents. 

For bail bond, twenty-five cents. 

For serving execution, twenty-five cents. 

For commitment to prison, twenty-five cents. 

For sale of goods, when value of goods does not exceed six dollars, twenty-five cents. 

On all sums above five dollars, five per centum. 

On all moneys collected on execution without sale, one-fourth of the above commis- 
sion. 



§ 95 CITIES. 94 

For returning execution, ten cents. 

For summoning a jury on any case, fifty cents. 

For posting up advertisements of sale, thirty cents. 

In criminal cases for serving warrants on each person named therein, twenty-five 
cents. 

For serving subpena, twenty-five cents. 

For attending examination on trial of a person charged with a crime or misdemeanor, 
twenty-five cents. 

If more than one, additional for each, twenty-five cents. 

For commitment of each person to prison, twenty -five cents. 

For service not herein enumerated, the same as in civil cases. R. S. 1894, § 8060. 

Mileag'e. — Constables' mileage, for each mile necessarily traveled in going and re- 
turning to serve process and subpena, ten cents. R. S. 1894, § 8061. 

Arrest without process.— City marshals and constables can not arrest persons with- 
out process for the commission of misdemeanors when not committed A^dthin their view. 
They are liable in trespass for illegal arrests. Pow v. Beckner, 3 Ind. 475 ; Plummer v. 
Stati, 135 Ind. 308; Doering v. State, 49 Ind. 56; Boaz v. Tate, 43 Ind. 60; Wiltse v. 
Holt, 95 Ind. 469. 

City marshals may arrest vvithout process any person who, within their view, shall 
commit any crime or misdemeanor, or violate any ordinance of the city, and detain 
such person until the cause of the arrest can be investigated. If the cour: having the 
jurisdiction is not in session, he may confine the person arrested in the city prison or 
county jail until he can be brought before the court, and this should be done at the 
earliest period. Boaz v. Tate, 43 Ind. 60 ; Scircle v. Neeves, 47 Ind. 289 ; Wiltse v. Holt, 
95 Ind. 469; Veneman v. Jones, 118 Ind. 41. 

He may arrest for a felony, without a warrant, on view, or upon information when 
he has reasonable or probable cause to believe that a felony has been committed, and 
in the latter case he does not make the arrest at the peril of proving the commission of 
the felony. Doering v. State, 49 Ind. 56 ; Simmons v. Vandyke, 138 Ind. 380. 

He has no authority to arrest a fugitive from another state, charged with a felony, 
upon a telegram from a peace officer of such other state directing the arrest and stating 
that he holds a warrant for such fugitive. Simmons v. Vandyke, 138 Ind. 380. 

Fugitives from justice from one county in the state to another county in the state may 
be apprehended by proceedings as provided in R. S. 1894, § 1667, and fugitives from 
another state into this state may be arrested, detained and returned upon demand of 
the executive authority of the state from which the criminal is a fugitive, upon warrant 
and upon identification as required by R. S. 1894, § 1668, et seq. Simmons v. Vandyke, 
138 Ind. 380. 

Police officer — Arrest without warrant. — A police officer may make an arrest upon 
view without a warrant where he has seen the agent of a brewing company at his place 
of business make a gift of a bottle of beer to a third person on the day of a general 
state election. Weser v. Welty, 18 App. 664. 

A police officer, after making an arrest at a time of day so early that the mayor of 
the city is not at his office and no other magistrate can be found, may incarcerate the 
prisoner in a jail for a brief period until he can be brought before a magistrate to an- 
swer to the charge. Weser v. Welty, 18 App. 664. 

To an action for false imprisonment against a marshal or constable, an answer, that 
the defendant found the plaintiff on the street intoxicated, and having just assaulted a 
citizen, and arrested and detained him three hours until he became sober, when a crim- 
inal charge was regularly made before a justice, and the plaintiff fined, etc., is good on 
demurrer. Wiltsie v. Holt, 95 Ind. 469. 

Under the general act of 1857 for the incorporation of cities, there was no authority 
for imprisoning a man for an uncertain time, because he may be subject to a penalty, 



95 INCORPORATION AND ORGANIZATION. § 95 

to be recovered in an action in the nature of an action of debt. Low v. Evans, 16 Ind. 
486. 

Arrest with process.— When the arrest is upon valid process issued by a court having 
jurisdiction, the officer is protected, and an action for false imprisonment will not lie. 
Boas V. Tate, 43 Ind. 60; Jeffries v. McNamara, 49 Ind. 142. 

A warrant issued by a court having jurisdiction of the offense charged, regular upon 
its face, will justify the officer in making the arrest. Jeffries v. McNamara, 49 Ind. 
142; Yess v. State, 93 Ind. 211. 

A valid warrant, though informal and erroneous, is sufficient. Goodwine v. Stephens, 
63 Ind. 112. 

An officer holding a valid warrant may call upon persons to assist him in making the 
arrest, or to assist the officer to prevent the escape of the person arrested. State v. 
Deniston, 6 Blackf . 277 ; Goodwine v. Stephens, 63 Ind. 112, 118. 

A warrant issued by a justice of the peace for the arrest of a person duly charged be- 
fore him with the commission of a crime or misdemeanor, and who has left the county 
in which the offense was committed, and where the warrant was issued, may be served 
by a constable of said county in any other county where the defendant may be found, 
upon attaching a certificate of the clerk of said county where such warrant was issued, 
setting forth that the justice signing the warrant is duly commissioned and qualified as 
such, and that his signature is genuine. Sturm v. Potter, 41 Ind. 181. 

A warrant commanding the arrest of a named person " and five other persons, whose 
names are unknown," is bad as to all persons arrested thereunder, except the one whose 
name is given, if timely objection be taken. Ard v. State, 114 Ind. 542. 

The right of a city marshal to arrest and imprison in the county jail carries with it 
the right, on the part of the jailer, to receive and detain the prisoner. Boaz v. Tate, 
43 Ind. 60. 

If a city marshal or police officer make an arrest and take the prisoner to a jail with 
the declaration that he has been arrested for an offense committed on view, that decla- 
ration stands in the place of a mittimus in other places, and the jailer should receive the 
prisoner without regard to the question of his guilt or innocence. Boaz v. Tate, 47 
Ind. 61. 

A city marshal has no authority to accept bail for appearance. Boaz v. Tate, 43 Ind. 60. 

A city marshal is liable for the acts of his deputy within the scope of his authority. 
Boaz V. Tate, 43 Ind. 60. 

Force. — A marshal, in making an arrest, is not authorized to use more force than is 
reasonably necessary to subject the person to his authority ; and if the officer use ex- 
cessive force and violence upon such person, he may repel force by force, and if, in the 
reasonable exercise of self-defense, he kills such officer he is justifiable. Plummer v. 
State, 135 Ind. 308. 

Escape. — The arrest of an offender and the retaking of him on fresh pursuit after an 
escape constitute but one effective arrest. Cooper v. Adams, 2 Blackf. 294; Freeman v. 
Smith, 7 Ind. 582. 

Marshals of cities are not required by law to leave their cities or counties to detect 
criminals, and may recover a reward offered for the detection and arrest of criminals 
outside of their jurisdiction. Bronnenberg v. Coburn, 100 Ind. 169. See Hayden v. 
Souger, 56 Ind. 42. 

Compensation— Fees— Salary. — Prior to the enactment of this section city marshals 
were not entitled to fees. City of Brazil v. McBride, 69 Ind. 244. 

The common council fixes the salary of the marshal by ordinance ; the common coun- 
cil has full power over the salary of the marshal and other city officers, with no restric- 
tions or limitations on the exercise of such power, except such as are specifically men- 
tioned in the statute. The council, in the exercise of their discretion, have the power 
to reduce the salary of the city marshal at any time during his period of services. City 
of Brazil v. MeBride, 69 Ind. 244. 



§ 96 CITIES. 96 

The city marshal and other officers of the city are prohibited from entering into con- 
tracts with the city ; the marshal can not recover for services contracted to be rendered 
by him to the city outside of the duties of his office, and the duties of his office he must 
perform for the compensation fixed by the statute and the salary prescribed by the 
council by ordinance. City of Brazil v. McBride, 69 Ind. 244. 

Liability of city. — The city is not liable for a wrongful arrest by the marshal, and can 
not be held liable on an agreement to indemnify the officer for performing his duty by 
making an arrest for the violation of a penal ordinance. Vaughtman v. Town of Water- 
loo, 14 App. 649. 

Police officers of a city are not its agents or servants, and it is not hable for their neg- 
hgence. City of Lafayette v. Timberlake, 88 Ind. 831 ; Faulkner v. City of Aurora, 85 
Ind. 130, 135; Town of Laurel v. Blue, 1 App. 128; Hopewell v. State, App. Ct., June 
9, 1899. 

A municipal corporation is not liable for an illegal arrest by its marshal made without 
warrant, and under an invalid ordinance. Town of Laurel v. Blue, 1 App. 128. 

[Acts 1867, p. 33. In force March 14, 1867.] 

96. City attorney's duties and fees. — 30. The city attorney shall 
be the legal adviser of all the officers of the city in relation to their 
official acts, and shall advise the council upon all matters of law 
which may be submitted to him in reference to the action of such 
council. He shall draw all contracts, ordinances, and legal docu- 
ments which may be required of him by the common council, and do 
and perform all other acts pertaining to the duties of his office. He 
shall prosecute all actions in favor of the city, and defend all actions 
brought against such city for any cause; but in no case shall the city 
be liable for costs. The city attorney shall be allowed a docket fee in 
all cases tried before the mayor or city judge, for violations of the 
city ordinances or upon appeals from judgments to the circuit court, 
when he appears in person or by deputy, as follows: 

Docket fee before the mayor or city judge, on a plea of * 'guilty," 
two dollars. 

Docket fee before the mayor or city judge, upon a plea of ''not guilty," 
four dollars. 

Docket fee in cases in the circuit court, upon appeal on a plea of 
"guilty," two dollars and fifty cents. 

Docket fee in cases in the circuit court, upon appeal on a plea of 
"not guilty," five dollars. R. S. 1894, § 3513. 

Appointment — Removal. — The city attorney is appointed by the common council in 
the same manner as the street commissioner and the civil engineer, and he becomes an 
officer of the city on his being appointed and qualifying by taking the oath and giving 
bond as prescribed by the statute. He holds office subject to removal by the common 
council at their pleasure ; and the council may at any time abolish the office. State v. 
Curiy, 134 Ind. 133; City of Madison v. Korbly, 32 Ind. 74; City of Logansport v. 
Crockett, 64 Ind. 319; State v. Wilson, 142 Ind. 102; Goodwin v. State, 142 Ind. 117. 
By Acts 1899, p. 562, he may be removed only for cause. See ante, § 59a. 

On the adoption of a resolution by the common council, removing the city attorney, 
the yeas and nays thereon must be taken and entered of record. City of Logansport v. 
Crockett, 64 Ind. 319; State v. Curry, 134 Ind. 133. 

Parol evidence is inadmissible to prove the yeas and nays on the adoption of such 
resolution ; the record, or a duly authenticated copy thereof, being the only competent 
evidence of such fact. City of Logansport v. Crockett, 64 Ind. 319. 



97 INCORPORATION AND ORGANIZATION. § 97 

A writ of mandate will lie to reinstate a city attorney appointed by the common coun- 
cil and afterward wrongfully removed by it from office. City of Madison v. Korbly, 32 
Ind. 74. 

The common council has no power to appoint a person city attorney as long as the 
office is filled by one previously duly appointed. State v. Curry, 134 Ind. 133. 

Salary — Fees. — The yeas and nays must be taken and entered of record on the adop- 
tion of a resolution by the common council fixing the salary of the city attorney. City 
of Logansport v. Crockett, 64 Ind. 319. 

Authority of city attorney. — A city attorney who is charged by statute with the duty 
to prosecute and defend all suits for and against the city in several controversies involv- 
ing the same issues may bind the city by an agreement that all the controversies shall 
abide the result of one test case. Bank of Commerce v. City of Louisville, 88 Fed. Rep. 
398. 

Costs. — Regardless of the effect of above section, if a party in an action against him 
for the violation of a city ordinance, upon appeal is found not guilty and recovers a 
judgment for costs against the city, he is entitled only to judgment for the fees and 
costs for which he would himself be liable. It is only the fees for which a party is 
liable that he may recover as costs against the other party. Mott v. State, 145 Ind. 353 ; 
Kiefer v. Summers, 137 Ind. 106. 

Cities are not liable to city attorneys for docket fees, when persons convicted of vio- 
lating ordinances are adjudged, in default of paying or replevying the judgment and 
costs, to pay the same by manual labor, and do, accordingly, work out the judgments 
and costs. Tuley v. City of Logansport, 53 Ind. 508. 

Special counsel. — The common council of a city has the power to employ counsel in 
addition to the city attorney to protect the interests of the city, but such employment 
must be made directly or through an authorized agency. Justice v. City of Logansport, 
I App. 135; City of Logansport v. Dykeman, 116 Ind. 15; Cullen v. Town of Carthage, 
103 Ind. 196. 

Cities and towns have the power to employ special counsel to defend their officers 
against liability which they may incur in the bona fide discharge of their duties. Cul- 
len V. Town of Carthage, 103 Ind. 196. 

When the common council of a city, properly convened, enters into a contract with 
an attorney, or where an attorney is employed through the agency of a committee or 
other authorized person, and has performed services of which the municipality has 
accepted the benefit, it may not afterwards object that the contract was not in writing, 
or that the vote of the council, on the question of employment, does not appear upon 
its records. Contracts of this character need not to be in writing, nor is it necessary 
that they should be evidenced by formal ordinance, by-law or resolution. City of Lo- 
gansport V. Dykeman, 116 Ind. 15. 

Although the debt of a city may be actually or nominally up to the constitutional 
limit, the provisions of article 13 of the constitution will not operate to invalidate a 
contract made by its common council, agreeing to pay an attorney for services to be 
rendered in compromising or contesting any part of such indebtedness. City of Lo- 
gansport V. Dykeman, 116 Ind. 15. 

97. Treasurer's duties. — 31. The treasurer shall receive all moneys, 
notes, bonds, and orders belonging to the city, and keep an accurate 
account of the amounts received and paid out by him; and no money 
shall be paid out of the treasury by him, except upon an order signed 
by the mayor or presiding officer of the common council, and coun- 
tersigned by the clerk. R. S. 1894,, § 3514. 
See posi, §1060. 

CiT. AND To.— 7 



§ 98 CITIES. 98 

Mandamus— License fee. — A vendor of intoxicating liquors can not maintain an 
action for a mandate to compel a city treasurer to accept a license fee under an ordi- 
nance of the city, in order that he may, prior to the expiration of a license previously 
i^ued to him, demand of the city clerk a new license. State v. Bonell, 119 Ind. 494, 

98. Duties of treasurer and clerk. — 32. All moneys due to or col- 
lected for such city on any account whatever shall be paid to the city 
treasurer, who shall, for all sums received by him, issue a receipt to 
the person paying the same; which receipt, except for taxes charged 
on the duplicate, such person shall file with the city clerk, who shall 
thereupon issue a quietus to such person, and charge the treasurer 
with the amount therein specified and upon what account paid. He 
shall receive city orders that are due, in payment of any debt, tax, or 
assessment due such city; and when an order is received by him for 
any debt, tax, or assessment due such city, or otherwise paid or re- 
deemed, he shall cancel the same by writing or stamping upon the face 
of such order the word ''redeemed" and the date of redemption; and 
such order shall never again be put in circulation. He shall also, in 
like manner, cancel all bonds or other evidences of indebtedness re- 
deemed or liquidated by him. He shall register all orders by him so 
redeemed in a book to be furnished him for that purpose, in the same 
manner as the clerk is required to register such orders; he shall also 
register all receipts given by him as required in this act, except re- 
ceipts for taxes charged on the tax duplicate. R, S. 1894, § 8515. 

[Acts 1875, p. 28. In force August 24, 1875.] 

99. Treasurer's duties — Interest. — 1. The city treasurer shall pay 
all orders issued by the city of which he is such treasurer, when pre- 
sented, whether indorsed or not as hereinafter stated in this act, if 
there be money in the treasury, appropriated for that purpose, suffi- 
cient to pay the same; if there be not money enough thus to pay such 
orders, he shall write or stamp on the back thereof, over his name, the 
date of such presentation, and note same " indorsed," in a register of 
orders to be provided him for that purpose; and such orders shall be 
entitled, thenceforth, to draw legal interest until there shall be money 
on hand sufiicient to pay the same. R, S. 1894, § 3516. 

[Acts 1899, p. 85. In force April 27, 1899.] 

99a. Treasurer's duties — Interest. — 1. That the city treasurer 
shall pay all orders issued by the city, of which he is such treasurer, 
when presented, properly indorsed, as hereinafter stated in this act, if 
there be money in the treasury appropriated for that purpose, suffi- 
cient to pay the same; if there be not money enough thus to pay such 
orders he shall write or stamp on the back thereof, over his name, the 
date of such presentation, and note the same in a register of orders, 
indorsed, to be provided him for that purpose, and such orders shall 
be entitled thenceforth to draw such interest as may be provided by 
the common council, not exceeding six per cent, until there shall be 
money on hands sufiicient to pay the same: Provided, That the pro- 



99 INCORrORATION AND ORGANIZATION. § 100 

visions of this act shall not apply to cities having more than twenty 
thousand inhabitants as shown by the last United States census. 

100. Interest — Orders receivable. — 2. Whenever there shall be 
money on hand to pay all outstanding orders which have been indorsed 
prior to any given date, the treasurer shall publish notice of such fact, 
by three insertions in some newspaper of general circulation in such 
city, and that such outstanding orders will be redeemed on presenta- 
tion; and interest shall cease on such orders from and after the date of 
such publication: Provided, That city orders shall be received in pay- 
ment of taxes for general purposes, and for all claims and demands 
due or belonging to the general fund of the city, without regard to 
priority of presentation or date of issue; but the treasurer shall not 
pay any balance thereon, over and above the amount of such tax, 
claim, or demand, when there are outstanding orders unpaid for want 
of funds. (As re-enacted. Acts 1899, p. 85.) R. S. 1894, § 3517. 

[Acts 1867, p. 33. In force March 14, 1867.] 

101. Treasurer's statements and liaMlity. — 33. The treasurer shall, 
on the last day of each month, furnish to the clerk a statement of all 
the receipts and disbursements made by him during the month, and 
the balance then in the treasury belonging to each fund, general and 
special, and also deliver to him all the orders redeemed and canceled 
by him during the same period, taking the clerk's receipt therefor; 
which statement with the orders redeemed, the clerk shall la}^ before 
the common council at its next meeting, to be disposed of as the com- 
mon council may direct. The treasurer shall, at least fifteen days 
before any annual election, and at all other times when so required by 
the common council, render a full account of the receipts and ex- 
penditures for the current year, and the general condition of the 
treasury. He shall also, at his own peril, keep the moneys of the city 
safely. R. S. 1894, § 3518. 

Statements— Not conclusive.— The entries and statements made by city treasurers as 
to the funds received by them are not concUisive against their sureties in actions upon 
their, bonds. State v. Grammer, 29 Ind. 530, and State v. Prather, 44 Ind. 287, over- 
ruled. Ohning v. City of Evansville, 66 Ind. 59; State v. Haynes, 79 Ind. 294; Strong 
V. State, 75 Ind. 440; Heagy v. State, 85 Ind. 260; State v. Hauser, 63 Ind. 155. 

But such reports are prima facie evidence, and unless satisfactorily contradicted, will 
warrant a finding against the officer and his sureties. Osborne v. State, 128 Ind. 129; 
Strong V. State, 75 Ind. 440 ; Ohning v. ,City of Evansville, 66 Ind. 59. 

Statements— Othei' duties.— County treasurers who act as city treasurers for cities 
containing over seventy thousand inhabitants, as provided by the act of February 21, 
1885, R. S. 1894, § 3744, et seq, must furnish the statements required by the above sec- 
tion, and § 2 of said act of 1885 enjoins upon and requires of him the performance of 
the same duties theretofore performed by the city treasurer, in the same manner and 
with like effect as such city treasurer had been previously required to perform such 
duties. Miller v. State, 106 Ind. 415. 

Action Demand. — Without previous demand action may be maintained against city 

treasurer for money not paid to successor. Foster v. City of Huntington, App. Ct.. 
June 7, 1899. 

102. Treasurer's assessiiieuts. — 34. The treasurer shall require 
of eacli arid every person whom tlie assessor failed to list, a stateiuent 



§ 103 CITIES. 100 

of his taxable property and the value thereof, which shall be given 
under the same regulations as if furnished by the assessor; and for that 
purpose the treasurer is authorized to administer the necessary oath 
or affirmation. If such person fail to furnish such statement, the 
treasurer shall value the same as the assessor is required to do in like 
cases. R. S. 1894, § 3519. 

Treasurer's assessment— Alteration of assessment.— The city treasurer has power 
to assess whom the assessor has failed to hst, but has no authority to alter upon the 
tax duplicate an assessment made by the assessor, or to add to such assessment by the 
assessor property omitted belonging to the person assessed. Wise v. Eastham, 30 Ind. 
133. 

103. Collecting delinqueut taxes. — 35. The treasurer is not re- 
quired, in any instance, to make a demand of taxes from the persons 
charged therewith, but may, in his discretion, do so; and if any per- 
son charged with a poll-tax, or any tax upon personal property, or 
any tax upon real estate, shall fail, w^hen called on, to pay the same, 
together with all interest, penalties, and costs, it shall be lawful for 
said treasurer to seize the chattels of such defaulter forthwith, and 
make sale thereof, as provided in this act, to satisfy the same; and 
should there be a surplus, after such sale and payment, he shall pay 
the same to the said person making such default. R. S. 1894, § 3520. 

The city treasurer alone is empowered to enforce the collection of city taxes delin- 
quent, current and unpaid, and any contract made by the city or its common council, 
with any person other than such city treasurer, for the collection of any city taxes, is 
ultra vires and absolutely void. City of Ft. Wayne v. Lehr, 88 Ind. 62; Miller v. Em- 
bree, 88 Ind. 133 ; Vandercook v. Williams, 106 Ind. 345. 

104. Lien of taxes. — 36. The lien of such incorporated city for 
air taxes, general or specific, shall attach on all real estate on the first 
day of April annually ; and such lien shall be perpetual for all taxes 
due from the owner thereof, which have heretofore accrued or shall 
hereafter accrue, with the interest and penalties in each case, until 
payment ; which lien shall in nowise be affected or destroyed by any 
sale or transfer of any such real estate. All the property, both real 
and personal, situate in any incorporated city, shall be liable to the 
payment of ail taxes, penalties, interest, and costs charged to the 
owner thereof in such incorporated city ; and no partial payment of 
any such taxes, penalties, interest, or costs shall discharge or release 
any part or portion of such property, until the whole be paid ; which 
lien shall in nowise be affected or destroyed by any sale or transfer of 
any such personal property. All taxes upon real estate shall be a lien 
thereon to the same extent as a judgment of a court of record of gen- 
eral jurisdiction, and shall have preference to any private charges up- 
on the same ; and all taxes upon personal property shall have prefer- 
ence over private claims. R. S. 1894, § 3521. 

105. Collecting taxes. — 37. Immediately on receiving the tax 
duplicate, the city treasurer shall proceed to collect the same, and 
shall give notice, by publication in some newspaper having a general 



101 INCORPORATION AND ORGANIZATION. § 106 

circulation in such city, for three successive weeks, stating in such 
notice the amount of tax charged for general or specific purposes on 
each one hundred dollars' valuation, also, the amount of poll-tax, 
and, also, the day on which the penalty will attach for non-payment of 
such taxes. In case any person shall refuse or neglect to pay the tax 
imposed on him, the city treasurer shall, after the third Monday of 
April, levy the same, together with ten per cent, damages, and the 
costs and charges that may accrue, by distress and sale of the goods 
and chattels of such person who ought to pay the same, wheresoever 
the same maybe found in the city. The power to levy and collect 
shall continue in such treasurer after his return and settlement v/ith 
the city clerk, until the taxes shall be paid, should goods or chattels 
of the delinquent be found within the city. The said treasurer shall, 
annually, on the first Monday of August, file with the city auditor 
schedules of all such delinquent taxes collected by him, verified by 
oath or affirmation, and shall be charged by the clerk with the amount 
collected. R. S. 1894, § 3522. 

106. Sale of land for taxes. — 38. If no goods or chattels can be 
found, out of which to make the tax, penalties, interest and costs 
charged against any person named in such duplicate, the treasurer 
shall sell any lot or land, or so much thereof as may be necessary, 
listed to such person, to pay the tax, with interest, penalties and costs 
thereon; and the treasurer's certificate to the purchaser shall state for 
what tax or taxes, interest, penalties and costs said lot or parcel of 
land was sold, which certificate shall be prima facie evidence of all 
the facts therein set forth. R. S. 1894, § 3523. 

107. Notice of sale of chattels. — 39. The treasurer shall give pub- 
lic notice of the time and place of sale of all goods and chattels to be 
sold, at least ten days previous to the day of sale, by v/ritten or printed 
advertisements, to be posted up in at least three public places in the 
city where such sale shall be made. R. S. 1894, § 3524. 

108. Chattels at auction.— 40. Such sales shall be made at public 
auction. No more property shall be sold than is sufficient to pay the 
tax, penalties, interest, costs and charges; and, if convenient, it shall 
be sold in parcels, and if sold for more than the amount necessary, 
the surplus shall be returned to the owner thereof. R. S. 1894, 
§ 3525. 

109. Land, how sold. — 41. In selling lots and parcels of land the 
treasurer shall offer the least quantity thereof that any bidder will 
take, and pay the amount of tax, penalties, interest, damages and 
costs assessed; and he shall make, seal and acknowledge, before some 
competent authority, a certificate of the land thus sold to such person. 
Before making such sale the treasurer shall give notice, not less than 
twenty days, in a newspaper printed and published in said city, that 
on a certain day therein named he will offer for sale the lands and lots 
on which taxes shall remain unpaid, or so much thereof as shall be 
necessary to pay said taxes, penalties, interest, and all costs and charges 
made by reason of the failure to pay said taxes. If such city is a 



§ 110 CITIES. K)2 

county seat, it shall be made at the court-house door; if not, it shall 
be made at the door of the city hall or other place of meeting of the 
common council. R. S. 1894, § 3526. 

110. Return of land sold — Redemption. — 42. It shall be the duty 
of the treasurer, immediately after the sale of any lot or parcel of land, 
to make return of the same to the city clerk, distinctly stating the lot 
or parcel of land sold, the name of the purchaser, the day of sale and 
the amount of tax, penalties, interest and costs for which it was sold; 
and any owner or claimant thereof, his agent or attorney, may redeem 
the same, upon the terms and like manner as the lands sold for state 
and county taxes are redeemed, by payment to the city treasurer. R. 
S. 1894, § 3527. 

111. Annual settlement. — 43. The city clerk and treasurer shall 
attend at the office of said clerk on the third Monday of April annu- 
ally; and the treasurer shall then and there make settlement with the 
clerk for the amount of taxes for which said treasurer is to stand 
charged, as follows: 

First. The clerk shall take from the duplicate in the hands of the 
treasurer for collection, a list of all such taxes as said treasurer shall 
have been unable to collect, therein describing the property on which 
such delinquent taxes are charged as the property described on such 
duplicate, and shall note therein, in a marginal column, the reasons 
assigned by such treasurer why such taxes could not be collected. 

Second. Such list shall be signed by the treasurer; and he shall also 
testify to the correctness thereof, under oath or affirmation, to be ad- 
ministered by the clerk. 

Third: The clerk shall forthwith record such list of delinquencies 
in a book to be kept in his office, and deliver copies of the same to the 
treasurer for collection; and the treasurer shall make return of such 
collections in the manner provided for in the thirty-seventh section of 
this act. R. S. 1894, § 3528. 

112. Fees on forfeited lands.— 44. The treasurer shall be entitled 
to such fees for collections made by distress and sale, and charges for 
keeping and removing property distrained, as are paid to county 
treasurers for like services. In case of no sale of any lot or parcel of 
land for want of bidders, the treasurer shall so return to the common 
council; and the said lot or parcel of land shall thereafter be consid- 
ered as forfeited to such city, to be disposed of as the common council 
shall thereafter, by ordinance, direct; but no disposition shall be 
made by such common council until after the expiration of four years 
from the date of such forfeiture; and until so disposed of or redeemed, 
such lot or parcel of land shall be continued on the duplicate, charged 
with all arrearages for which it was forfeited, and interest and ten per 
cent, damages per annum, and shall be annually assessed and charged 
with all accruing taxes, penalties, and interest, as other lands. Such 
land shall annually be offered for sale, with and on the same terms as 
other delinquent lands; and, until sold for the amount of all arrear- 
ages, may be redeemed, as provided in section 42 [§ 3527], on pay- 



103 INCOKPORATION AND ORGANIZATION. § 113 

ment of the same into the city treasury by the owner or owners there- 
of. All sales by the treasurer for delinquent taxes, and the giving of 
certificates and conveyances therefor, shall be conducted in like man- 
ner as by the county treasurer under the general law of the state; but 
such conveyance shall be made to such purchaser in the corporate 
name of the city; which certificates and deeds of conveyance shall be 
prima facie evidence of all the facts stated therein. R. S. 1894, 
§ 3529. 

Fees for the collection of taxes. — The fees of city treasurers for collecting taxes by 
the sale of goods are only such as are allowed constables on execution sales, and such 
fees are to be collected from the tax-payer, except when the proceeds of sale are not 
sufficient to pay all taxes due and such fees. Board, etc., v. Wasson, 74 Ind. 133. 

Same — Presumption — Complaint — Demurrer. — Upon a demurrer to a complaint in 
an action by the board of school commissioners of a city, against the city treasurer, to 
recover school tax levied by them and claimed by such treasurer as fees and charges for 
collections made by distress and sale, it will be presumed that such officer levied on 
property sufficient to pay all that was due, including his own fees and charges. Board, 
etc., V. Wasson, 74 Ind. 133. 

113. Oath — Bonds. — 45. The mayor, each member of the common 
council, city clerk, assessor, civil engineer, street commissioner, mar- 
shal, city attorney, and treasurer shall each, before entering upon the 
duties of his office, take and subscribe an oath, to be indorsed upon 
the back of his certificate of election, before some officer authorized to 
administer the same, to support the constitution of the United States 
and the constitution of the state of Indiana, and to faithfully and hon- 
estly discharge the duties of his office; which oath, with his certificate 
of election, shall be filed with the city clerk. And each of said 
officers, except members of the council, shall, in like manner, execute 
a bond, with approved security, payable to the state of Indiana in such 
penal sum as the common council shall, by resolution or ordinance, 
order and direct, conditioned for the faithful performance of the duties 
of his office and the payment of all moneys received by him according 
to law and the ordinances of such city: Provided, hoiuever, That in no 
case shall the mayor's bond be fixed at a less sum than $3,000, nor 
shall the treasurer's bond be fixed at a less sum than double the 
amount of the estimated tax duplicate of the current year; which 
bonds shall be filed with the city clerk, except the bond of the clerk, 
which shall be filed with the city treasurer. R. S. 1894, § 3530. 

Bond of mayor. See ante, § 80. 

Officers, liability on bond.— If a wrongful act be done by virtue of the office, the 
officer and his sureties will be liable on his official bond. State v. Walford, 11 App. 392; 
State V. Beckner, 132 Ind. 371. 

A public officer and his sureties are liable also for wrongful acts done by color of his 
office, as well as by virtue of his office. State v. Druly, 3 Ind. 431 ; Snell v. State. 43 
Ind. 359; State v. White, 88 Ind. 587; State v. Walford, 11 App. 392. 

Under R. S. 1894, § 7543, a permanent, continuing liability is created against an offi- 
cer and sureties for the failure to discharge any duty imposed by existing law, and for 
the failure to discharge any duty required under laws subsequently enacted. State v. 



§ 113 CITIES. 104 

Davis, 96 Ind. 539; State v. Stevens, 103 Ind. 55; Davis v. State, 44 Ind. 38; Rogers v. 
State, 99 Ind. 218. 

Clerk's bond, liability. — In an action upon the official bond of a city clerk to recover 
moneys collected by him pursuant to ordinances of the city, which it is alleged he 
failed to pay over and converted to his own use, in violation of the conditions of his 
bond, the obligors are estopped to assert that the ordinances under wiiich the clerk 
received the moneys, and which were in force when the bond was executed, are void. 
Middleton v. State, 120 Ind. 166. 

If a city clerk, under color of his office, fills up city orders, which have been signed 
by the mayor in blank, and makes them payable to himself, and presents them to the 
treasurer and procures the money thereon when nothing was due him from the city, 
this will constitute a breach of his official bond for which his sureties will be liable. 
Armington v. State, 45 Ind. 10, 

This section authorizes the bond of a city clerk to be conditioned for the payment of 
all moneys received by him according to law and the ordinances of the city. Middleton 
v. State, 120 Ind. 166. 

City treasurer— Liability on bond.— If a city treasurer loan funds of the city under 
direction of the city council, and take notes therefor approved by the council, payable 
to him as treasurer, the sureties on his bond are liable for the interest collected for 
which he fails to account. Hunt v. State, 124 Ind. 306. See Hadley v. State, 66 Ind. 
271. 

The city treasurer is liable on his bond for moneys received by him from the sale of 
bonds, no matter by whom such sale is made. State v. Hauser, 63 Ind. 183. 

He is not liable on his bond for the mere sale, assignment and delivery by him of 
bonds when acting as the agent of the common council pursuant to an ordinance, reso- 
lution or other order. State v. Hauser, 63 Ind. 183. 

An answer in an action on the city treasurer's bond for money alleged to have been 
received by him as such from the sale of such bonds, that by the terms of such negotia- 
tion, which was approved by the common council, the proceeds of such bonds were to and 
did remain in the hands of the purchaser, to be used only as needed in constructing the 
water-works, and that the purchaser had become insolvent while the funds in question 
yet remained in his hands, is sufficient. State v. Hauser, 63 Ind. 155. 

Estoppel— Report of city treasurer.— The fact that the city treasurer, in reporting to 
the common council the condition of the fund realized from such sale, had therein 
charged himself with funds which, under the contract made between the common coun- 
cil and the purchaser of the bonds, yet remained in the hands of the purchaser, does 
not estop him to deny his liabihty for such funds. State v. Hauser, 63 Ind. 155. 

In this state, a public officer, as a county treasurer, who has received public money, 
with the custody of which he is charged by virtue of his office, in the absence of a stat- 
ute providing that the ownership of the specific money shall remain in the public, is 
not, like a trustee or an agent, the mere bailee or custodian of such money, but it be- 
comes his own money, and he can only be required to account for it and pay it over as 
provided by law and by the terms of his official bond, and can not be required to ac- 
count for and pay over amounts collected or received by him as interest on such money. 
Shelton v. State, 53 Ind. 331 ; Halbert v. State, 22 Ind. 125 ; Rock v. Stinger, 36 Ind. 346 ; 
Bocard v. State, 79 Ind. 270; Linville v. Leininger, 72 Ind. 491 ; Brown v. State, 78 Ind. 
239; Hiatt v. State, 110 Ind. 472; Rowley v. Fair, 104 Ind. 189; Rogers v. State, 99 Ind. 
218. 

The use of the money by the officer does not constitute a breach of the bond. The 
breach occurs only when the officer fails to account for the money as required by law. 
Harvey v. State, 94 Ind. 159; Brown v. State, 78 Ind. 239; Hiatt v. State, 110 Ind. 
472. 



105 



GOVERNMENT AND POWERS. 



113 



If the council declares the office of treasurer vacant, and appoints one to fill the va- 
cancy, the treasurer acquiescing, the appointee becomes treasurer de facto, and the fact 
that no vacancy existed can not be pleaded by his sureties to a suit for breach of his 
bond for failing to perform his duties while in office, or failing to pay over money be- 
longing to the city. Mowbray v. State, 88 Ind. 324. 

Loaning' fnnds— Can not recover. — Where an officer loans public funds in violation 
of the statute, E. S. 1894, § 2019 (post, § 1158), he can not maintain an action to recover 
the same. Winchester Electric Light Co. v. Veal, 145 Ind. 506. 

In an action on the bond of a city treasurer the bond itself is the foundation of the 
action, and may properly be made part of the complaint by copy. State v. Hauser, 63 
Ind. 155. 

That an official bond of a city treasurer was not approved, or that the officer did not 
take office until after the death of a surety thereon, or an irregularity as to the time of 
approval, does not affect the validity of the bond. Mowbray v. State, 88 Ind. 324. 

Lender the charter of the town of Peru, which provided that the marshal should give 
bond within ten days after his election, his failure to do so would not vacate his office. 
State V. Porter, 7 Ind. 204. See State v. Hadley, 27 Ind. 496, and State v. Johnson, 100 
Ind. 489. 

AETICLE 2.— GOVEENMENT AND POWEES. 



SEC. 




SEC, 


114. 


Meetings — Casting vote — President 


139. 




pro tempore. 


140, 


115. 


Stated and special meetings. 


141. 


116. 


Officers. 


142. 


117. 


Ordinances. 


143. 


117a 


. Ordinances — Approval and objec- 


144, 




tions by mayor. 


145. 


118. 


Penal ordinances— Publication. 


146. 


119. 


Expulsion of officers. 


147. 


120. 


City seal. 


148. 


121. 


Streams and ferries. 


149. 


122. 


Contracts. 


150, 


123. 


Salaries. 




124. 


Common council — Control of finances 
— General powers. 


151. 


125. 


Licensing and regulating business by 


152. 




cities. 


153. 


126. 


Grades of railroad tracks. 




127. 


Sewer, gas and water connections. 


154 


128. 


Market-houses. 


155. 


129. 


Market-houses. 


156, 


130. 


Market-hou ses — Nuisance . 


157, 


131. 


Pipes for heating, etc. 


158, 


132. 


Selling real estate. 


159. 


133. 


Vote necessary— Deed. 


160, 


134. 


Appraisement. 


161, 


135. 


Conveyance of public grounds. 


162. 


136. 


Deed, how executed — Title conveyed. 


163. 


137. 


Eeal estate for sanitary purposes. 


164. 


138. 


Water-works. 


165, 



Infirmary for poor. 
Large cities may borrow money. 
Purpose of loan. 
Ordinance for loan. 
Interest — Sale of bonds. 
Large cities — Funding bonds. 
Limit of debt. 
Limit of tax levy. 
Orders forbidden. 
Appropriations forbidden. 
Sinking fund commissioners. 
Politics of commissioners — Election 
—Oath— Bond. 
Treasurer's duties — Disposition of 

funds. 
Statement to be published. 
Interest — Use of funds — Penalty for 

misapplication. 
Compensation of commissioners. 
Eemoval. 
Vacancies. 

Funding by small cities. 
Tax — Sinking fund. 
Surrender of charter. 
Petition — Proceedings. 
Official acts cease with decree. 
Vested rights not affected. 
Constructing harbor. 
City may do the work. 
Contract. 



§114 



CITIES, 



106 



SEC. SEC. 

166. Map and profile— Estimate. 191. 

167. Appropriation of land. 

168. Condemnation. 192. 

169. Notice of appraisement. 

170. Report. 193. 

171. Possession after tender. 194. 

172. Appeal. 195. 

173. Assessments are liens — Foreclosure. 

174. Harbors — Slips — Docks — Regulating. 196. 

175. Owners to repair. 

176. Notice. 197. 

177. Construction. 198. 

178. Plan and estimate. 199. 

179. Return of assessment. 

180. Assessments, how collected. 200. 

181. Liability of city — Superintendent. 201. 

182. Proceedings. 202. 

183. Sewers — Drains — Cisterns. 

184. Sewers — Cost in cities less than thirty- 203. 

five thousand. 

185. Main sew^ers — Assessment of cost. 204. 

186. Laws governing assessments— Bonds 205. 

—Payment. 206. 

187. Drains, inlets and outlets — Damages. 207. 

188. Petition to circuit court — Remon- 208. 

strance— Proceedings. 209. 

189. Report, correction of — Hearing — Or- 210. 

der of court. 211. 

190. Construction — Assessments — Collec- 

tion. 

[Acts 1867, p. 33. In force March 14, 1867.] 

114. Meetings — Casting-vote— President pro tempore. — 46. The 

mayor and common councilmen of said city shall constitute the com- 
mon council, and shall meet within ten days after the annual election, 
and at such other times as they shall, by resolution, direct. The 
mayor shall be the presiding officer of the common council, and shall 
have a casting-vote in all cases when a tie, but not otherwise.. The 
presiding officer, in the absence of the mayor, shall sign all contracts, 
licenses, permits and other instruments as the mayor might do, and 
they shall have like effect. R. S. 1894, § 3531. 

Mayor — Duties — Mandamus. — The mayor under this section is the presiding officer 
of the common council, and, in case of a tie, has the casting vote. The duty of the 
mayor to recognize members of the common council and permit them to exercise their 
duties as such, may, in case of his refusal, be enforced by mandamus. Swindell v. 
State, 143 Ind. 153 ; State v. Sv/indell, 146 Ind. 527. 

Councilmen — Liability. — The members of a common council of a city are not liable, 
either civilly or criminally, for acts done by them as such in the exercise of a discretion 
confided to them by law, unless they act corruptly. Walker v. Hallock, 32 Ind. 239; 
Baker v. State, 27 Ind. 485; Newman v. Sylvester, 42 Ind. 106; 1 Beach Pub. Corp., 
§§ 203, 516. 

Liability of city. — A municipal corporation is an instrumentality of government and 
is not liable for a failure to exercise legislative or judicial powers, nor for an improper 



Notice of proceedings — Liens — Ee- 
cording. 

Acts liberally construed — Informali- 
ties — Release. 

Repairs. 

Report of commissioner. 

Agreement as to damages — Record- 
ing — Collection. 

Levees — Construction by city — Pro- 
cedure. 

Contract — Bids — Payment . 

Jurisdiction of city — Condemnation. 

Collection of assessment — Official 
duties. 

Duplicates — Description — Engineer. 

Aid to roads, bridges, etc. 

Aid to railroads, hydraulic compa- 
nies, etc. 

Aid to roads in other states, by bor- 
der counties, cities and townships. 

Bonds by border city. 

Petition to city. 

Duty of council. 

Bonds. 

Interest— Sinking fund. 

Payment of aid. 

Jurisdiction beyond limits. 

By-laws — Penalties. 



107 GOVERNMENT AND POWERS. § 115 

or negligent exercise of such powers. City of Anderson v. East, 117 Incl. 126; "Wheeler 
Y. City of Plymouth, 116 Ind. 158; Dooley v. Town of Sullivan, 112 Ind. 451; City of 
Terre Haute v. Hudnut, 112 Ind. 542; City of Evansville v. Decker, 84 Ind. 325; Brink- 
meyer v. City of Evansville, 29 Ind. 187; Stackhouse v. City of Lafayette, 26 Ind. 17 : 
1 Beach Pub.' Corp., §§ 258, 259. 

A municipal corporation is not liable for a failure to enact or enforce ordinances, 
Wheeler V. City of Plymouth, 116 Ind. 158; City of Lafayette v. Timberlake, 88 Ind. 
330 ; Dooley v. Town of Sullivan, 112 Ind. 451. 

A municipal corporation is not liable for the acts of its licensees unless it is shown 
that they were authorized to perform an act dangerous in itself. Wheeler v. City of 
Plymouth, 116 Ind. 158; City of Warsaw v. Dunlap, 112 Ind. 576; Ryan v. Curran, 64 
Ind. 345; City of Michigan v. Boeckhng, 122 Ind. 39. 

Ministerial duties. — For the negligent performance of a ministerial duty imposed 
by law the city is liable. City of Anderson v. East, 117 Ind. 126; Stackhouse v. City of 
Lafayette, 26 Ind. 17 ; City of Greencastle v. Martin, 74 Ind. 449; Weis v. City of Madi- 
son, 75 Ind. 241; City of Logansport v. Wright, 25 Ind. 512; Roll v. City of Indian- 
apohs, 52 Ind. 547 ; 1 Beach Pub. Corp., § 260. 

Deleg'ation of power. — The common council can not delegate its powers. State v. 
Hauser, 63 Ind. 155; Martindale v. Palmer, 52 Ind. 411. 

Office of coimcilmaii lucrative, but not in constitutional sense.— The office of coun- 
cilman is lucrative in the ordinary sense of the word, but is not a lucrative office within 
the meaning of the ninth section of the second article of the constitution, which pro- 
vides that no person shall hold more than one lucrative office. It is an office purely 
and wholly municipal in its character, and such officer has no duties to perform under 
the general laws of the state. State v. Kirk, 44 Ind. 401 ; Chambers v. State, 127 Ind. 
365. 

Councilmen, when disqualified to act, — When councilmen have a personal interest 
in the action of the council different from the interests of the inhabitants of the city 
generally, they are not competent to act. City of Madison v. Smith, 83 Ind. 502 ; Mayor, 
etc., V. State, 57 Ind. 152. 

Notice to councilmen — Notice to city. — Notice to a member of the common council 
of a city or the board of trustees of a town of the defective condition of a street or side- 
walk, is notice to the city or town. City of Logansport v. Justice, 74 Ind. 378; City of 
Columbus V. Strassner, 124 Ind. 482; Jewell v. Town of Sullivan, 5 App. 188; City of 
Lafayette v. Larson, 73 Ind. 367; Board, etc., v. Leggett, 115 Ind. 544. 

Mandate — Ministerial duties. — Mandate may lie against a city council to compel the 
performance of ministerial duties. Mayor v. State, 57 Ind. 152; Wren v. City of 
Indianapolis, 96 Ind. 206. 

Where the council has a discretionary power, mandate will not lie ; but where the 
duty is an imperative one mandate will lie. City of Madison v. Smith, 83 Ind. 502; 
Board, etc., v. State, 129 Ind. 42. 

115. Stated and special meetings. — 47. The common council 
shall hold stated meetings at least twice in each month; and the 
mayor or any five councilmen may call special meetings. A majority 
of all members to which the wards are entitled shall be a quorum; 
and the minutes of every such meeting shall be kept by the city clerk, 
which shall be open to public inspection. R. S. 1894, § 3532. 

Quorum. — When a quorum of a city council is present, a majority of such quorum 
may transact business. Rushville Gas Co. v. City of Rushville, 121 Ind. 206. 

Less than a quorum of the council can do no vahd act. City of Logansport v. Legg, 
20 Ind. 315. 

Special meeting'. — The duty growing out of the power to call special meetings, in 



§ 116 CITIES. 108 

proper cases, being an individual duty imposed on each member of the council, it is in- 
cumbent upon each, when informed of an emergency which requires the action of the 
common council, to notify the mayor or other councilmen who may join in the neces- 
sary call, and, if he negligently fails to perform this duty the city is liable to anyone 
who may suffer injury thereby. City of Logansport v. Justice, 74 Ind. 378. 

116. Officers. — 48. At every such first annual meeting the common 
council shall appoint, by ballot, a chief engineer of the fire depart- 
ment, three commissioners to form a board of health, and, in their 
discretion, a sealer of weights and measures, and as many supervisors 
of streets, to act under the direction of the street commissioner, as they 
may deem necessary, and all other ofiicers which the by-laws may 
create or require, unless, for a good cause, deemed inexpedient at that 
time. And the common council may, by ordinance, prescribe such 
rules and regulations, in addition to those herein contained, for the 
qualification and official conduct of all city officers, as they may deem 
for the public good, and which shall not be inconsistent with the pro- 
visions of this act. And the common council may authorize any city 
officer, except the mayor or city judge, to appoint, with the concur- 
rence of the common council, one or more deputies. R. S. 1894, § 3533. 

Local boards of health, see post, § 1153, et seq. 

Rules — Ordinances. — AVhen the common council by ordinance prescribes rules and 
regulations for the enactment of ordinances, such rules and regulations must be com- 
plied with so long as such ordinance is in force, and such ordinance can not be repealed 
by verbal motion. Swindell v. State, 143 Ind. 153; State v. Smndell, etc., 146 Ind. 
527. 

Members of board of health— City officers— Contracts,— A member of a board of 
health of a city is a city officer, and can not be interested in any contract by which any 
indebtedness is created against the city. City of Ft. Wayne v. Rosenthal, 75 Ind. 156. 

Small-pox— Vaccination— City ordinances construed.— City ordinances requiring 
the board of health to have persons vaccinated as a protection against small-pox do not 
thereby impose upon the board, or its members, the duty to do, but only to provide for 
the doing of, such services as may be required of physicians. City of Ft. Wayne v. 
Rosenthal, 75 Ind. 156. 

Same— Voluntary services. — In such case, the services rendered by a physician, who 
is a member of the board of health, are voluntary, and confer upon the city no value 
or benefit which could have been rejected, and by keeping w^hich the city ratifies the 
contract and becomes liable upon a quantum meruit, or a quantiim valebat. City of Ft. 
Wayne v. Rosenthal, 75 Ind. 156. 

Supervisors. — The supervisors of streets authorized by this section can act only un- 
der the direction of the street commissioner. Mitchell v. Wiles, 59 Ind. 364. 

117. Ordinances. — 78. All by-laws and ordinances shall, within 
a reasonable time after their passage, be recorded in a book kept for 
that purpose, and shall be signed by the presiding officer of the city, 
and attested by the clerk. On the passage or adoption of any by-law, 
ordinance or resolution, the yeas and nays shall betaken, and entered 
on the record. R. S. 1894, § 3534. 

See post, § 124 and notes. 



109 GOVERNMENT AND POWERS. § 117a 

[Acts 1899, p. 125. In force February 24, 1899. j 

117a. Ordinances — Approval and objections by mayor. — 1. That in 
all incorporated cities which had a population of less than 30,000 
inhabitants, according to the census of 1890, every ordinance of the 
common council shall, immediately upon its enrollment, attestation 
and signature of the clerk, be presented by him to the mayor, and a 
record of the time of such presentation made by the clerk. If the 
mayor approves it, he shall sign it and it shall become a law ; if he does 
not approve it, he shall return it to the clerk with his objections in 
writing within ten days after receiving it and the clerk shall present 
the same to the common council at its next meeting. It shall be the 
official duty of the mayor to express in writing his disapproval as here- 
inbefore provided. If for any reason within the ten days the mayor 
fails to disapprove the same in writing, it shall be deemed equivalent 
to approval, and in all cases of disapproval by the mayor, the same 
shall not become a law unless the body in which the measure origi- 
nated within thirty days after the time named by the mayor's action, 
again pass the same by a majority vote of the members of the common 
council elect. 

Passag'e of ordinance — Yeas and nays.— On the adoption of an ordinance or resolu- 
tion by the common council of a city the yeas and nays thereon must be taken and en- 
tered of record. This provision is mandatory, and a non-compliance therewith will ren- 
der the adoption of an ordinance nugatory. New Albany, etc., Co. v. Crumbo, 10 
App. 360; Swindell v. State, 143 Ind. 153; City of Logansport v. Crockett, 64 Ind. 319; 
1 Dillon Munic. Corp., § 291 ; Coffin v. City of Portland, 43 Fed. Rep. 411. 

Parol eA'idence of yeas and nays incompetent.— Parol evidence is inadmissible to 
prove the yeas and nays on the adoption of an ordinance or resolution ; the record or a 
duly authenticated copy thereof being the only competent evidence of such fact. City 
of Logansport v. Crockett, 64 Ind. 319; Byerv. Town of New Castle, 124 Ind. 86; City 
of Aurora v. Fox, 78 Ind. 1. 

Nunc pro tunc entry. — Where the city clerk has failed to keep the record of the yeas 
and nays, the proper remedy is for the common council to cause a nunc pro tunc entry of 
the yeas and nays to be made. Everett v. Deal, 148 Ind. 90; City of Logansport v, 
Crockett, 64 Ind. 319; Chamberlain v. City of Evansville, 77 Ind. 542; City of New Al- 
bany V. Endres, 143 Ind. 192. 

Record evidence. — The only competent evidence of any act or proceeding of a mu- 
nicipal body, upon which the members of the corporate body arc required to vote, is the 
record of the proceedings. City of Logansport v. Crockett, 64 Ind. 319 ; Byer v. Town 
of New Castle, 124 Ind. 86. 

Estoppel — Parol evidence. — Where one has been induced to perform work or ex- 
pend money on the faith of the proceedings of the council, the municipality is estopped, 
after receiving the beneiit of the work, to say that the evidence of the proceedings was 
not properly preserved. In such cases parol evidence of the proceedings of the council 
is competent. Byer v. Town of New Castle, 124 Ind. SQ', City of Logansport v. Dyke- 
man, 116 Ind. 15; Ross v. City of Madison, 1 Ind. 281; State v. Hauser, 63 Ind. 155. 

Record and parol evidence.— In proceedings to appropriate real estate, parol evi- 
dence of the taking of the essential steps required by the statute can not be received ; 
such steps can be proven only by the proper record. Byer v. Town of New Castle, 124 
Ind. 86 ; City of Aurora v. Fox, 78 Ind. 1. 

The statutory mode for proving the acts of a corporation should be followed, or some 



§ 118 CITIES. 110 

excuse shown for not doing so. City of Aurora v. Fox, 78 Ind. 1; Indianapolis, etc., 
E. Co. V. Jewett, 16 Ind. 273. 

The statute which provides that the acts and proceedings of a corporation may be 
proven by a sworn copy of the record was not intended to make such copy the only 
legal evidence of such acts. The original record is the best evidence, and is always ad- 
missible in evidence. Green v. City of Indianapolis, 25 Ind. 490. 

The record of the proceedings of the council is admissible in evidence against the 
city. City of Delphi v. Lowery, 74 Ind. 520. 

Yeas and nays sufficiently shown.— E. S. 1894, § 3534, provides, that ''on the pas- 
sage of any by-law, ordinance or resolution, the yeas and nays shall be taken and 
entered of record." A resolution and an order for the advertisement for bids, the 
record of which shows that the "yeas and nays being taken under the general rule, 
were unanimously adopted by a full vote of the council," shows a compliance with this 
statute, and can not be collaterally attacked by an owner whose property is benefited 
by the improvement ordained. New Albany, etc., Co. v. Crumbo, 10 App. 360. 

Sig'uing", attesting' and recording*. — Under this section all by-laws and ordinances 
enacted by the common councils of cities are required, within a reasonable time after 
their passage, to be recorded in a book kept for that purpose, and to be signed by the 
presiding officer and attested by the clerk. City of Hammond v. New York, etc., E. 
Co., 5 App. 526, 530. 

When sufficiently sig'ned, etc, — Where an ordinance was duly and legally passed 
and adopted by the common council of a city and was spread of record at length and 
recorded in the minutes of the council proceedings in a book kept for that purpose, 
and the minutes of all the proceedings of said session at which said ordinance was 
passed and adopted were duly signed and attested by the clerk of said city, but said 
ordinance was not signed apart from said council proceedings, there was a substantial 
compliance with E. S, 1894, § 3534, in the matter of the signing, attesting and recording 
of said ordinance. Bills v. City of Goshen, 117 Ind. 221, distinguished; City of Ham- 
mond V. New York, etc., E. Co., 5 App. 526, 531. 

Signature of mayor — Yalidity. — It is not essential to the validity of an ordinance 
that the same be signed by the mayor. The provision of the statute as to signing by the 
mayor is directory. Martindale v. Palmer, 52 Ind. 411 ; Shea v. City of Muncie, 148 
Ind. 14. 
■ The last preceding section has been enacted since these decisions. 

Lost record— Effect. — The losing of the record of an ordinance does not render the 
ordinance invalid. Keehn v. McGillicuddy, 15 App. 580. 

Publication, when necessary. — It is only ordinances that are penal in their charac- 
ter that are required to be published. City of Elkhart v. Wickwire, 121 Ind. 331, 340. 

118. Penal ordinances — Publication. — 57. Every by-law imposing 
a penalty or forfeiture for the violation thereof shall, before the same 
shall take effect, be published two weeks consecutively in some news- 
paper printed in the city: Provided, That in case of insurrection, riot, 
pestilence, conflagration or other impending danger requiring the 
immediate operation of such ordinance, it shall take effect as soon as 
proclamation is made thereof by such common council and posted at 
five public places in each of the wards of such city: Provided, further, 
The common council shall have discretionary power to direct the pub- 
lication of any ordinance in a daily newspaper and the publication 
thereof for one day each in any two consecutive weeks in any daily 
paper shall be deemed sufficient to allow the same to take effect: Pro- 
vided, That when no paper is published in such city, printed or 



Ill GOVERNMENT AND POWERS. § 119 

written copies of such ordinance shall be posted up by the city mar- 
shal in at least five public places in each ward of such city for two 
weeks before the taking effect thereof: Provided, further, That when- 
ever any city shall publish any of its ordinances in book or pamphlet 
form, such publication shall be of itself a sufficient publication, and 
such ordinance or ordinances shall take effect two weeks from the 
date of publication appearing upon the said book or pamphlet. Any 
such publication in book or pamphlet form, if the same shall purport 
to be printed under the authority of the common council of such city, 
shall be presumptive evidence in all courts and places of the ordi- 
nances therein contained and of the date of adoption, and that the 
same are properly signed, attested and recorded. [As amended, Acts 
1889, p. 342. In force May 10, 1889.] R. S. 1894, § 3535. 

Bee post, §§ 211,1383 and notes, and R. S. 1894, §§ 1299, 1303. 

Publication of ordinances. — An ordinance prescribing a penalty must be published 
pursuant to the statute before it can take effect. If an ordinance is defective, and it is 
sought to remedy such defect, in a penal ordinance, by a supplemental ordinance, the 
latter must be published before it can be effective. City of Elkhart v. Wickwire, 121 
Ind. 331 ; Bills v. City of Goshen, 117 Ind. 221. 

Under R. S. 1894, § 3499 (ante, § 82) in an action on a city ordinance to recover a pen- 
alty, proof of publication of the ordinance need not be made unless publication is denied 
under oath. Green v. City of Indianapolis, 25 Ind. 490; Lake Erie, etc., R. Co. v. City 
of Noblesville, 15 App. 697 ; Lake Erie, etc., R. Co. v. City of Noblesville, 16 App. 20. 

Evidence. — When a city ordinance is admitted in evidence without objection, and it 
has been admitted that it has been passed, the jury is justified in concluding that the 
ordinance was in force, though there was no proof of publication as required by law. 
Lake Erie, etc., R. Co. v. City of Noblesville, 15 App. 697. 

Validity of ordinance— When not in question.— An action to recover the penalty 
prescribed for the violation of a city ordinance does not necessarily call in question the 
validity of the ordinance. Griffee v. Town of Summitville, 10 App. 332. 

Criminal offense— Invalidity of ordinance. — Where an act is made a misdemeanor 
punishable under the criminal law of the state, a city or town can not enact an ordi- 
nance prescribing a penalty for the same offense. Cit}^ of Indianapolis v. Higgins, 141 
Ind. 1 ; City of Indianapolis v. Huegele, 115 Ind. 581 ; Jett v. City of Richmond, 78 Ind. 
316. 

Prior to the enactment of the statute prohibiting towns and cities from making acts 
punishable by ordinance which are made public offenses punishable by the state, cities 
and towns could be authorized to provide by ordinance for the punishment of an act 
already punishable by the criminal law of the state. Williams v'. City of Warsaw, 60 
Ind. 457; Ambrose v. State, 6 Ind. 351; Sloan v. State, 8 Blackf. 361; Waldo v. Wal- 
lace, 12 Ind. 569. 

119. Expulsion of officers. — 88. Any member of the common 
council may be expelled or removed from office by a two-thirds vote 
of the whole number elected; but not a second time for the same of- 
fense. Any officer of such municipal corporation, whether elected or 
appointed, may be removed by a like vote. The common council 
shall mal^e provision in their by-laws or ordinances as to tlie mode in 
which charges shall be preferred and the hearing of the same had. 
R. S. 1894, § 3536. 

Removal of city attorney and city engineer, see § ante, §o9(r. 

Charg-es ag-aiiist officers. — This section only has reference to officers removed on 



§ 120 CITIES. 112 

charges preferred, and not to such officers as the council may remove at its pleasure. 
City of Madison v. Korbly, 32 Ind. 74; City of Madison v. Kelso, 32 Ind. 79. 

Power to remove officers. — The common council of a city has power to remove a 
corporate officer for neglect or violation of duty, whether such officer be elected by that 
body or by the people. Muhler v. Hedekin, 119 Ind. 481 ; City of Logansport v. Crock- 
ett, 64 Ind. 319. See 1 Dillon Munic. Corp., § 251, et seq.; 1 Beach Pub, Corp., §§ 190, 191, 
192 n. 

Common council not a judicial body — Injunction. — A common council is not a judi- 
cial body, and in the examination of charges preferred against a municipal officer, with 
a view to determine whether he shall be removed, and in removing him, it does not act 
judicially in such a sense as to subject its proceedings to the jurisdiction of a court of 
chancery, either by w^ay of prohibition or injunction, Muhler v. Hedekin, 119 Ind. 
481; Mitchell v. Wiles, 59 Ind. 364, 367, 

120. City seal. — 49. Each common council shall cause to be pro- 
vided a corporate seal, around the margin of which shall be the name 
of such city and the word "Indiana," and in the center thereof, such 
device as the common council may direct ; and such seal shall be 
affixed to all instruments or writings needing authentication. R. S. 
1894, § 3537. 

121. Streams and ferries. — 50. The common council shall have 
exclusive power to keep open streams, and preserve, and, if necessary 
and expedient, change the course of rivers passing through or border- 
ing upon the corporate limits of such city; to prevent encroachments 
or injury to the banks thereof, or the casting into the same of offal, 
dead animals, logs, or rubbish; and, within the corporate limits of 
such city, to establish and regulate ferries across such streams and 
rivers; to license any person or persons or corporation to keep such 
ferry or ferries, and exact a reasonable fee for such license; to desig- 
nate the kind of boats to be used at such ferries, and the times and 
places of landing; and to prescribe the rates of ferriage to be charged 
at such ferry or ferries. And whenever the bank of such stream or 
river shall be a public highway or public wharf or commons within 
the limits of such city, the common council of such city shall have 
full and exclusive power to authorize the use of any part or parts of 
such bank as a landing-place for such ferry or ferries: Provided, 
however, That no new ferry or ferries shall be thus established within 
one mile below or above an established ferry, unless the common 
council of said city shall determine, by the votes of two-thirds of the 
members of such common council, that public convenience requires 
the establishment of such new ferry or ferries: And provided, further, 
That if any person be aggrieved by the establishment of such new 
ferry or ferries, or by the action of the common council in fixing the 
rates of ferriage, he shall have the right to appeal to the circuit court 
of the proper county, upon filing bond in the city clerk's office, within 
thirty days thereafter, payable to such city, with security to be 
approved by such clerk, and conditioned for the due prosecution of such 
appeal, and the payment of all costs if judgment be rendered against 
such appellant; and the city clerk shall cause such bond, with a certi- 
fied copy of the proceedings of said common council, and all of the 
original papers of the cause, to be filed in the office of the clerk of 



113 GOVERNMENT AND POWERS. § 122 

such circuit court within twenty days thereafter, and such cause shall 
be docketed for the ensuing term of such court, and further proceed- 
ings had and judgment rendered therein as in other cases of appeal. 
R. S. 1894, § 3538. 

Streams— Rivers— Watercourses.— For definition of ^'streams," ''rivers," and "wa- 
tercourses" see the following: Board, etc., v. Castetter, 7 App. 309; Board, etc., v. 
Wagner, 138 Ind. 609, 616; Schlichter v. Phillipy, 67 Ind. 201; Weis v. City of Madison, 
75 Ind. 241 ; Hebron, etc., Co. v. Harvey, 90 Ind. 192 ; Eice v. City of Evansville, 108 Ind- 
7; Board, etc., v. Bailey, 122 Ind. 46. 

Under the power conferred by the above section upon the city the duty devolves upon 
it to keep open the streams of water within the corporate limits, and if by public im- 
provements it obstructs such streams, thereby causing them to overflow adjoining prop- 
erty to the injury of the owner thereof, the city will be liable in damages. City of South 
Bend v. Paxon, 67 Ind. 228; Weis v. City of Madison, 75 Ind. 241. 

Ferries— License— Interstate waters.— A state may, either directly or through a 
grant of power delegated to a municipal corporation, exact reasonable license fees from 
the keepers of ferries living within the state, although their boats ply between landings 
lying in two different states. City of Madison v. Abbott, 118 Ind. 337, 339. 

Interstate ferries — 3Iunicipal reg'ulation. — The common council of a city may pre- 
scribe reasonable regulations for the government of interstate ferries, and may desig- 
nate the time and place of landing, consistently with the general law and with such 
regulations as the board of county commissioners is authorized to make. City of Madi- 
son V. Abbott, 118 Ind. 337, 340. 

Under a prior general act for the incorporation of cities it was held that a power con- 
ferred upon the common council "to regulate ferries " (1 G. & H. 223) does not include 
the authority to prohibit, without a license first obtained from the city. Duckwall v. 
City of New Albany, 25 Ind. 283; Shallcross v. City of Jeffersonville, 26 Ind. 193. 

122. Contracts, — 52. No member of the common council or other 
officer of such city shall, either directly or indirectly, be a party to 
or in any manner interested in any contract or agreement with such 
city for any matter, cause, or thing by which any liability or indebt- 
edness is in any way or manner created against such city ; and if any 
contract should be made in contravention of the foregoing provisions, 
the same shall be null and void. No officer of such city shall pur- 
chase any bond, order, claim, or demand whatever against such city, 
during his continuance in office, for any sum less than the amount 
specified therein; and any bond, order, claim, or demand purchased 
by any officer of such city, in contravention of the foregoing provision, 
shall be forfeited to such city, and no action shall ever be maintained 
thereon. R. S. 1894, § 3539. 

See post, § 1420. 

Contracts with officers void.— Cities can not make contracts with any officer thereof 
that will create any liability against the city. All such contracts are void. The above 
provision is strictly construed. City of Madison v. Smith, 83 Ind. 502; City of Brazil 
V. McBride, 69 Ind. 244; City of Fort Wayne v. Rosenthal, 75 Ind. 156; Case v. John- 
son, 91 Ind. 477; Benton v. Hamilton, 110 Ind. 294; McGregor v. City of Logansport, 
79 Ind. 166 ; Waymire v. Powell, 105 Ind. 328 ; 1 Beach Pub. Corp., § 177 ; 1 Dillon Munic. 
Corp., § 444; 2 Beach Conts., §1210. 

Interest of COimcilmen. — Where the action of a common council in voting aid to a 
CiT. AND To.— 8 



§ 123 CITIES. 114 

railroad company depends upon discretion, councilmen who are stockholders in the 
railroad company are not competent to act, and a grant of aid carried by their votes will 
not be vahd. City of Madison v. Smith, 83 Ind. 502. See Mayor, etc., v. State, 57 Ind. 
152. 

Marshal. — A city marshal's contract for compensation for special services is void» 
City of Brazil v. McBride, 69 Ind. 244. 

Member of board of health. — A member of a board of health of a city is a city offi- 
cer ; and his contract with the city to vaccinate pupils in the public schools is a void con- 
tract, and creates no liability against the city. City of Fort Wayne v. Rosenthal, 75 Ind. 
156. 

An officer of a city can not as agent contract with himself personally, buying what he 
is employed to sell, or hiring himself to do a service which he is employed to procure to 
be done. City of Fort Wayne v. Rosenthal, 75 Ind. 156. 

City judg'e. — The common council of a city can not make a valid contract with the 
city judge for the use of his office as a city court room. McGregor v. City of Logans- 
port, 79 Ind. 166. 

This section does not prevent a city from compromising its debts through trustees ap- 
pointed for that purpose, and the facts that any of such trustees are, at the time, mem- 
bers of her common council, and contribute voluntarily to a fund for the payment of 
the bond-holder, do not forfeit the debt to the city ; nor does it render void a tax levied 
to pay such debt. City of Aurora v. Lamar, 59 Ind. 400. 

123. Salaries. — 51. The common council shall, within one 
month after the annual election in each year, fix the salaries of all the 
officers of such city provided for in this act, and by ordinance provide 
for the payment of the same; which salaries shall be paid on the first 
days of January, April, July, and October in each year, and, when so 
fixed, shall not be increased during that year: Provided, That no 
member of the common council shall be allowed a greater sum than 
one hundred and fifty dollars in any one year for all services rendered 
by him as such member. R. S. 1894, § 3540. 

Salaries should be fixed by ordinance, and not by resolution. 1 Beach Pub. Corp., 
§ 166; City of Brazil v. McBride, 69 Ind. 244. 

Ordinance— Salaries, etc. — On the adoption of an ordinance or resolution fixing the 
salaries of officers the yeas and nays must be entered of record. City of Logansport v. 
Crockett, 64 Ind. 319. 

In an action by an officer to recover a balance due him on salaiy, a copy of the or- 
dinance fixing such salary must be filed with or set out in the complaint. City of 
Brazil v. McBride, 69 Ind. 244. 

Under this act, the common council of a city has full power over the salaries of city 
officers, with no restrictions or limitations on such power, except such as are specifically 
mentioned in the statute. The council has power to reduce the salary of a city officer 
in their discretion. City of Brazil v. McBride, 69 Ind. 244; 1 Beach Pub. Corp., § 166; 
1 Dillon Munic. Corp., 4th ed., § 231. 

City of Evansville — Charter — Salaries of officers. — For a construction of the pro- 
visions of the former charter of Evansville upon the subject of the power of the council 
to fix and change salaries, see Walker v. City of Evansville, 33 Ind. 393. 

The act of March 11, 1875, Acts 1875, Eeg. Sess., p. 148, was not designed to, nor did 
it in any way, change the law concerning the salary, compensation, fees, or emolu- 
ments of city treasurers. By the above section, city treasurers are to be paid for gen- 
eral services, a salary to be accurately determined and fixed on some certain basis by 



115 GOVERNMENT AND POWERS. § 124 

the city council. It may be a percentage on taxes levied, but it can not be on taxes 
collected during the year, nor are city treasurers entitled, in addition to such salary, to 
a percentage of the taxes collected by them, assessed by the city board of school com- 
missioners. Board, etc., of Indianapolis v. Wasson, 74 Ind. 133. 

The city or its officers can not charge any part of the salaries of its officers named in 
this section, against the taxes collected for the school corporation. Board, etc., of In- 
dianapolis V. AVasson, 74 Ind. 133. 

[Acts 1873, p. 50. In force March 10, 1873.] 

124. Common council— Control of finances — General powers.— 

53. They shall have the management and control of the finances of 
the city, and of all property, real and personal, belonging thereto; 
-and shall have the additional powers herein permitted, and may 
make and publish by-laws and ordinances necessary to enforce the 
same. The common council shall have power to enforce ordinances. 

See rtw^e, §§ 117, 117rt, and notes. 

The act of 1895 (Burns' Supp. 1897, § 3641), amending § 53 of the general act for 
the incorporation of cities, is not void in that the title fails to mention the subject of 
prohibiting sales of intoxicating liquors in residence portions of cities. Shea v. City of 
Muncie, 148 Ind. 14. 

Power to make contracts. — The common council of a city alone has power to obli- 
gate the city by contract. State v. City of Michigan City, 138 Ind. 455. 

The powers possessed by municipal corporations are : First, those granted in express 
words ; second, those necessarily or fairly implied in, or incident to, the powers ex- 
pressly granted ; third, those essential to the declared objects and purposes of the cor- 
poration. 1 Beach Pub. Corp., § 538; 2 Beach Pub. Corp., § 1003; 1 Dillon Munic. 
Corp., 4th ed., §§ 89, 450; City of Crawfordsville v. Braden, 130 Ind. 149; Lewisville, 
etc., Co. V. State, 135 Ind. 49, 51 ; Champer v. City of Greencastle, 138 Ind. 339; Pitts- 
burgh, etc., E. Co. V. Town of Crown Point, 146 Ind. 421 ; City of Shelby ville v. Cleve- 
land, etc., R. Co., 146 Ind. 66; Clark v. City of South Bend, 85 Ind. 276; 2 Beaeii 
Conts., §1138. 

No contract can be made which is expressly prohibited by the statute, whatever may 
be the consequences; nor can a contract prohibited by statute be ratified. 1 Dillou 
Munic. Corp., 4th ed., § 447; City of Indianapolis v. Indianapolis, etc., Co., 66 Ind. 405; 
City of Valparaiso v. Gardner, 97 Ind. 6; City of Indianapolis v. Wann, 144 Ind. 175. 

Subsequent leg-islative ratification of unauthorized municipal acts.— The legisla- 
ture, by subsequent ratification, may make legal municipal action which was originally 
without legal sanction, but which it might, in the first instance, have authorized. Bolles 
V. Brimfield, 120 U. S. 759; Anderson v. Santa Anna, 116 U. S. 356. 

Municipal powers— Liabilities— Local law binding" on federal courts.— When the 
settled decisions of the highest court of a state have determined the extent and charac- 
ter of the powers which its political and municipal organizations may possess, the de- 
cisions are authoritative upon the courts of the United States ; the decisions of the state 
court upon the liabilities of municipal corporations are equally binding. Claiborne 
County V. Brooks, 111 U. S. 400; Detroit v. Osborne, 135 U. S. 492. See B. tl- 0. Rail- 
road V. Baugh, 149 U. S. 368, 374, 397 ; Rich v. Mentz, 134 IT. S. 632 ; Taylor v. YpsilaiUi, 
105 TJ. S. 60. 

Qualification or exception to the rule.— If a contract when made isvahdbythe laws 
of the state, as then expounded by all the departments of its government, and adminis- 
tered in its courts of justice, its validity and obligation can not be impaired by any sub- 
sequent act of th^ legislature of the state or decisions of its courts, altering the construc- 
tion of the law. Taylor v. Ypsilanti, 105 U. S. 60; Ohio Life Ins. Co. v. Debolt, 1(i 
How. 416; City v. Lamson, 9 Wall. 477. 

Enumerating" powers— General statute.— The enumeration in the general statute for 



§ 124 CITIES. 116 

the incorporation of cities of certain powers which would belong to the corporation 
without such specific enumeration is merely a declaration of a pre-existing power, or of 
a power which is inherent in the nature of a municipal corporation, and which is essen- 
tial to enable it to accomplish the end for which it is created. Such enumeration of 
powers, although it include a portion of those usually implied, does not necessarily 
operate as a limitation of corporate powers by excluding those not enumerated. City of 
Crawfordsville v. Braden, 130 Ind. 149, 154; Clark v. City of South Bend, 85 Ind. 276; 
First Nat. Bank v. Sarlls, 129 Ind. 201. 

Municipal powers — How exercised. — A municipal corporation can only exercise 
such powers as are conferred upon it, either expressly or by necessary implication, by 
the law under which it is incorporated ; but where the power to do an act is conferred 
upon the corporation, and the law is silent as to the manner of doing such act, the cor- 
porate authorities are necessarily clothed with a reasonable discretion to determine the 
manner in which such act shall be done. City of Anderson v. O'Conner, 98 Ind. 168; 
Eushville Gas Co. v. City of Rushville, 121 Ind. 206, 214; City of Lafayette v. Cox, 5 
Ind. 38; Eichels v. Evansville, etc., Co., 78 Ind. 282; City of Crawfordsville v. Braden, 
130 Ind. 149; Miller v. Board, etc., 66 Ind. 167; City of Eichmond v. McGirr, 78 Ind. 
197; Newcomb v. City of Indianapohs, 141 Ind. 451; 1 Beach Pub. Corp., §§ 541, 542. 

Method of exercise of power prescribed.— When the method for the exercise of the 
power is prescribed such method must be followed ; the acts authorized in such case 
must be done in the manner prescribed by the charter ; and, especially when such acts 
affect private property, the powers granted must be strictly pursued. Kyle v. Malin, 8 
Ind. 34; City of Aurora v. West, 22 Ind. 88 ; City of Anderson v. O'Conner, 98 Ind. 168 ; 
Cross V. Morristown, 18 N. J. Eq. 305; 1 Dillon Munic. Corp., § 307, n., p. 385; Church- 
man V. City of Indianapolis, 110 Ind. 259 ; Smith v. Board, etc., 6 App. 153, 163 ; 1 Beach 
Pub. Corp., §§541, 542; 2 Beach Conts., § 1136. 

Discretion — Control by courts. — The discretion of municipal corporations, within 
the sphere of their powers, is not subject to judicial control, except in case of fraud or 
where the discretion has been grossly abused to the oppression of the inhabitants. 
City of Terre Haute v. Terre Haute, etc., Co., 94 Ind. 305, 307 ; City of Crawfordsville 
V. Braden, 130 Ind. 149, 158; City of Anderson v. O'Conner, 98 Ind. 168; Newcomb v. 
City of Indianapolis, 141 Ind. 451. 

A city has the power to operate a plant of its own for the purpose of lighting its 
streets, and consequently it has the power to purchase all the materials and employ ail 
the labor necessary for carrying it on. The right to employ labor, etc., is among the 
general discretionary powers which are not subject to judicial control except in cases of 
fraud, or where it is shown that such discretion has been grossly abused to the detri- 
ment of public interests ; and such contracts, when they do not come within these ex- 
ceptions, will be upheld. Rushville, etc., Co. v. City of Rushville, 121 Ind. 206, 213; 
City of Crawfordsville v. Braden, 130 Ind. 149, 158; Rockebrandt v. City of Madison, 
9 App. 227, 229. 

Charter — Strict construction. — Municipal charters are to be construed strictly, yet 
they are to be so construed as to carry into effect every power clearly intended to be 
conferred on the municipality, and every power necessary to be implied for the com- 
plete exercise of the powers granted. Smith v. City of Madison, 7 Ind. 86; Kyle v. 
Malin, 8 Ind. 34; Board, etc., v. Silvers, 22 Ind. 491; Robb v. City of Indianapolis, 38 
Ind. 49, 51; Pittsburgh, etc., R. Co. v. Town of Crown Point, 146 Ind. 421. 

Same — Implied powers. — No incidental powers can be implied, except such as are 
essential to the accomplishment of the declared objects or purposes of the corporation 
and for its continued existence ; doubtful claims to power, or any doubt or ambiguity 
in the terms used by the legislature, are resolved against the corporation. Pittsburgh, 
etc., R. Co. V. Town of Crown Point, 146 Ind. 421; City of Shelby ville v. Cleveland, 
etc., R. Cq., 146 Ind. 66. 



117 GOVERNMENT AND POWERS. § 124 

All persons contracting with a municipal corporation must at their peril inquire into 
the power of the corporation and its officers to make the contract. Union School 
Township v. First National Bank, 102 Ind. 464, 476; Pine Civil Township v. Huber 
Mfg. Co., 83 Ind. 121; 1 Dillon Munic. Corp., §§ 457, 477, and note, § 488 ; City of In- 
dianapolis V. Wann, 144 Ind. 175; Hamilton v. City of Shelbyville, 6 App. 538; City of 
La Porte v. Gamewell, etc., Co., 146 Ind. 466. 

Implied and incidental powers. — The authority to construct sewers for the drainage 
of streets is an incidental power of a municipal corporation invested with a general 
power over highways w^ithin the corporate limits, and the corporate officers have au- 
thority to-contract for a right to construct a sewer through private property. Leeds v. 
City of Eichmond, 102 Ind. 372. 

Municipal corporations have implied power to light the streets and public places, etc. 
No statute is necessary to give them this power. City of Crawfordsville v. Braden, 130 
Ind. 149. 

Cities have also the incidental power to compromise and adjust disputed claims, and 
to employ agents or attorneys to accomplish that end. 

In respect to contracts which are within the ordinary corporate power of the city, and 
in relation to which no statutory requirements are laid down, or mode of procedure pre- 
scribed, such city will be bound by its contract, and will be affected by the principles of 
ratification, in the same manner as an individual, and will be bound by implied con- 
tracts or agreements to pay for services performed for It at its request, and such implied 
agreements may be deduced by inference by authorized corporate acts, without either 
a vote or writing. City of Logansport v. Dykeman, 116 Ind. 15. 

Among the implied powers possessed by municipal corporations is the power to enact 
and enforce reasonable by-laws and ordinances for the protection of health, life and 
property. City of Crawfotdsville v. Braden, 130 Ind. 149, 155; Corporation of Bluffton 
V. Studabaker, 106 Ind. 129; Clark v. City of South Bend, 85 Ind. 276; Baumgartner v. 
Hasty, 100 Ind. 575. 

For general statement of implied powers, see 1 Beach Pub. Corp., § 637, et seq. 

Cities may execute contracts for the purpose of carrying out the intentions and objects 
of their organizations, and when such contracts do not restrict the legitimate exercise 
of the public functions of such cities, or are not in restraint of the legislative power 
thereof, they are valid and binding on the corporations. City of Valparaiso v. Gardner, 
97 Ind. 1, 4; City of Indianapolis v. Indianapolis, etc., Co., 66 Ind. 396. 

Municipal corporations have power to make contracts in aid of their local govern- 
ment, and the test of the validity of such a contract is whether or not the object to be 
accomplished will aid in such government. Hamilton v. City of Shelbyville, 6 App. 
538. 

Distinction between powers. — There is a distinction between powers of a legislative 
character and powers of a business nature. City of Valparaiso v. Gardner, 97 Ind. 1, 4 ; 
City of Vincennes v. Citizens', etc., Co., 132 Ind. 114, 126. 

Evidence— Eeport of committee— Admission.— In an action against a city to recover 
on a contract for professional services, the report of the committee of the common coun- 
cil, on the subject of the performance of such contract, w^hich is in the nature of an ad- 
mission that the council had notice of the contract, and that the plaintiff was proceed- 
ing under it, is admissible in evidence. City of Logansport v. Dykeman, 116 Ind. 15. 

How contracts may be made.— In the transaction of mere matters of business, such 
as the purchase of goods, the employment of persons or agencies to perform service for 
the municipality, a formal ordinance, by-law or resolution is not necessary, nor need 
such contracts be in writing. City of Logansport v. Dykeman, 116 Ind. 15, 18; Over v. 
City of Greenfield, 107 Ind. 231. 

Contracts by the common council of a city can only be made by an order, resolution 
or ordinance, passed in the manner required by the statute. City of Terre Haute v. 
Lake, 43 Ind. 480; Pettis v. Johnson, bQ> Ind. 139, 151. 



§ 124 CITIES. 118 

The contracts of corporations rest upon the same footing as those of natural persons, 
and are valid without seal, whether expressly made by the corporation, or arising by 
implication from the general relation of the agent toward the corporation, or from the 
ratification of acts done by persons assuming to act as agents, although without suffi- 
cient authority. Ross v. City of Madison, 1 Ind. 281 ; Trustees, etc., v. Johnson, 53 Ind. 
273, 275. 

Ultra vires — Injunction. — The execution of a contract is a ministerial act, and may 
be enjoined if the contract is in excess of corporate authority, and the suit maybe main- 
tained by a tax-payer. City of Valparaiso v. Gardner, 97 Ind. 1, 4; Sackett y. City of 
New Albany, 88 Ind. 473 ; City of Madison v. Smith, 83 Ind. 502 ; Noble v. City of Vin- 
cennes, 42 Ind. 125; City of Kichmond v. Davis, 103 Ind. 449; 2 Beach Conts., §§ lloG, 
1167. 

Limit of power to contract. — While the power of a city to contract for a supply of 
water for public use is, in a general sense, a discretionary one, it can not be so exercised 
as to create a corporate debt beyond that limited by law, nor to surrender or suspend 
legislative power. City of Valparaiso v. Gardner, 97 Ind. 1, 3. 

A city can not by contract surrender any of its legislative or discretionary powers 
confided to it for the public good, and which may or may not be exercised at its pleas- 
ure in the interest of the public. City of Peru v. Gleason, 91 Ind. 566, 577; Schipperv. 
City of Aurora, 121 Ind. 154. 

Oral contract, when valid, — An oral contract made by a city for the purchase of 
personal property of the value of over |50 is void under the statute of frauds, unless it 
is brought within some of the exceptions of the statute. Over v. City of Greenfield, 107 
Ind. 231, 236. 

Contract with attorney— Service accepted.— ^Vhere the common council of a city, 
properly convened, enters into a contract with an attorney, or where an attorney is em- 
ployed through the agency of a committee or other authorized person, and has per- 
formed services of which the municipality has accepted the benefit, it may not afterward 
object that the contract was not in writing, or that the vote of the council, on the question 
of employment, does not appear upon its records. City of Logansport v. Dykeman, 
116 Ind. 15, 19. 

General averment of contract — Presumption.— In an action against a city for serv- 
ices rendered in securing the settlement of its indebtedness, w^here there is an averment 
in the complaint that such city entered into a contract with the plaintiff, whereby the 
latter undertook and agreed, in consideration, etc., it will be presumed that whatever 
was necessary to be done by the common council, in respect to its records in relation to 
entering into such contract, was properly done ; and no additional averment as to the 
manner of executing the contract is necessary. City of Logansport v. Dykeman, 116 
Ind. 15, 18. 

A complaint on a cause of action based upon the making or annulling of a contract 
by a city must contain a copy of the orders of the common council in making and an- 
nulling the contract. City of Terre Haute v. Lake, 43 Ind. 480. 

Contracts may be ratified.— Contracts which are within the ordinary corporate powers 
of a city, and in reference to which there are no statutory requirements, may be ratified 
by cities as private contracts between individuals may be ratified. City of Logansport 
v. Dykeman, 116 Ind. 15; Ross v. City of Madison, 1 Ind. 281. 

Notice of termination of contract. — ^\liere notice must be given by a city of the 
termination of a contract, one given by a councilman, without authority from the com- 
mon council, is not sufficient; but a notice given by the city clerk, thereunto ordered by 
the common council, is sufficient. City or Indianapolis v. Bly, 39 Ind. 373. 

Can not purchase real estate for school purposes.— A city, organized under the 
general law for the incorporation of cities, has no power to buy and give its promissory 
notes for a county seminary, though for school purposes in the city. That power be- 
longs to the school corporation of the city. State v. City of Terre Haute, 87 Ind. 212. 



119 GOVERNMENT AND POWERS. § 124 

Sale of city property — G-ift. — A municipal corporation may sell property of the city 
not held for a public purpose. The power to do so is an incidental power inherent in 
all corporations, public and private, unless withheld by the law under which they are 
organized. The officers of the city have no power to make gifts of city property. City 
of Terre Haute v. Terre Haute, etc., Co., 94 Ind. 305; O'Boyle v. Shannon, 80 Ind. 159; 
Shannon v. O'Boyle, 51 Ind. 565; City of Ft. Wayne v. Lake Shore, etc., E. Co., 132 
Ind. 558. 

Sales of property made by municipal corporations in the exercise of discretionary 
power can not be annulled for the reason that the bargain was improvident. City of 
Terre Haute v. Terre Haute, etc., Co., 94 Ind. 305. 

Common council— Regularity of proceeding's— Presumption.— Where the common 
council by resolution accepts a proposition for the sale of property, the regularity of 
the proceedings by which such resolution is adopted will be presumed, and averments 
•showing the particular manner of its adoption are unnecessary. Over v. City of Green- 
field, 107 Ind. 231 ; City of Logansport v. Dykeman, 116 Ind. 15. 

Rig'ht to alienate corporate property. — A municipal corporation possesses the im- 
plied right to alienate its property, real or personal, of a private nature, unless restrained 
by charter or statute, but it can not dispose of property of a public nature in violation 
of the trust upon which it is held. There is a distinction between property purchased 
for a public use, and not yet dedicated, and property purchased for that purpose and 
actually dedicated to that use. A deed which vests title to property in a municipal cor- 
poration may be of such a character as to dedicate the property to a public use, and 
where a deed vests the title to property in fee-simple in the municipal corporation, with- 
out limitation or restriction as to its alienation, the corporation has the right, any time 
before it is dedicated to a public use, to dispose of the property. City of Fort Wayne v. 
Lake Shore, etc., R. Co., 132 Ind. 558, 563. 

Property of city— Sale on leg'al process.— The property of a municipal corporation 
held for public or governmental purposes can not be sold on any legal process. It can 
not be sold upon execution, nor for the enforcement of street assessment liens or for 
the payment of mechanics' liens. Lowe v. Board, etc., 94 Ind. 553; President, etc., v. 
City of Indianapolis, 12 Ind. 620; Board, etc., v. Norrington, 82 Ind. 190; Board, etc., 
v. O'Connor, 86 Ind. 531; Fatout v. Board, etc., 102 Ind. 223; Secrist v. Board, etc., 
100 Ind. 59; Townsend v. Cleveland, etc., Co., 18 App. 568. 

Mechanics' lien— Notice to building- committee— Liability of city.— Notice to the 
members of a building committee of the common council, that the persons giving the 
notice have filed a lien on the building constructed by the city under the supervision of 
the committee, and that said members will be held liable to a certain amount for ma- 
terials furnished for said building, will fix no personal hability on the city. City of 
Crawfordsville v. Irwin, 46 Ind. 438. 

Leg"islative and ministerial power. — A city is not liable for the exercise of a legis- 
lative power, but is liable for the negligent performance of ministerial acts. Weis v. 
City of Madison, 75 Ind. 241, 250; Cummins v. City of Seymour, 79 Ind. 491, 494; City 
of Evansville v. Decker, 84 Ind. 325, 326; Rozell v. City of Anderson, 91 Ind. 591, 594; 
City of North Vernon v. Voegler, 103 Ind. 314, 316; Dooley v. To^-n of Sullivan, 112 
Ind. 451, 453; City of Logansport v. Wright, 25 Ind. 512; 1 Beach Pub. Corp., §§ 258, 
259, 260. 

Police power — Deleg-ation by leg-islature.- The police power primarily inheres in 
the state ; but the legislature may delegate, at least a part of it, to municipal corpora- 
tions, either in express terms or by implication arising from the fact of the creation of 
such corporation. City of Crawfordsville v. Braden, 130 Ind. 149. 154. 

Health and safety — Rig'ht to g-uard.— By the act authorizing or incorporating a mu- 
nicipal corporation, the legislature expressly delegates to the municipality the power to 
preserve the health and safety of its inhabitants. City of Crawfordsville v. Braden, 130 
Ind. 149, 155. See 2 Beach Conts., § 1141. 



§ 124 CITIES. 120 

Failure to enact or enforce laws, etc.— A municipal corporation is not liable for fail- 
ure to exercise governmental powers, as for failure to enforce the state laws or its own 
ordinances, nor for omitting to enact ordinances. City of Lafayette v. Timberlake, 88 
Ind. 330, 331 ; City of Lafayette v. Eose, 88 Ind. 471 ; Kistner v. City of Indianapolis, 
100 Ind. 210, 220; Summers v. Board, etc., 103 Ind. 262, 264; ^Yheeler v. City of Ply- 
mouth, 116 Ind. 158, 159 ; City of Anderson v. East, 117 Ind. 126, 127 ; Town of Mon- 
ticello V. Fox, 3 App. 481, 487. 

Actions— Statute of limitations.— The statute of limitations does not run against the 
sovereign power, but as against municipal corporations, or corporations deri\dng their 
power from the sovereign, and which are, in a limited sense, governmental, as counties 
and cities, the statute of limitations does run, except as to property devoted to a public 
use, or held upon a public trust, and contracts and rights of a public character. City of 
Bedford v. Willard, 133 Ind. 562; Sims v. City of Frankfort, 79 Ind. 446; Churchman 
V. City of Indianapolis, 110 Ind. 259. 

Where land belonging to a county is not held upon a public trust, nor devoted to a 
public use, and is conveyed to a city, the statute of limitations will run against the 
county and its grantee, in favor of one who, with his grantors, has had uninterrupted 
adverse possession of said land for twenty years or more. City of Bedford v. AVillard, 
133 Ind. 562. 

Municipal corporations, as respects public rights, are not within the ordinary limita- 
tion statutes. Mere permissive possession of a part of a street for the statutory period 
of limitation will not confer title. Sims v. City of Frankfort, 79 Ind. 446. 

The mere receipt of money, under a claim or color of right, by a public officer, for the 
recovery of which an ordinary action will lie, does not constitute him a trustee in such 
a sense as to preclude the defense of the statute of limitations. Churchman v. City of 
Indianapohs, 110 Ind. 259. 

Recovery — When may be had. — A recovery can be had against a municipal corpora- 
tion only where it negligently performs or fails to perform a ministerial duty imposed 
by law. City of Anderson v. East, 117 Ind. 126, 128. 

Ordinance and by-laws. — The words "ordinance" and "by-law" are used inter- 
changeably in the statute and are synonymous. Bills v. City of Goshen, 117 Ind. 221, 
225; 1 Beach Pub. Corp., § 483. 

Eesolution. — Where a city has power to act in a given instance, and its charter or 
the general law does not prescribe the manner of its action, it may accomplish its pur- 
pose either by a resolution or by an ordinance. City of Crawfordsville v. Braden, 130 
Ind. 149, 162 ; 2 Beach Conts., § 1144. 

But when the statute requires an act to be by ordinance, it can not be done by reso- 
lution. 1 Beach Pub. Corp., §§ 484, 485. 

Title— Constitutional law. — The provision of the constitution relative to titles to acts 
of the legislature has no application to city ordinances. Baumgartner v. Hasty, 100 
Ind. 575, 585 ; Green v. City of Indianapolis, 25 Ind. 490. 

Ordinances are laws. — Ordinances of a city, duly enacted pursuant to powers con- 
ferred upon it by its charter, are in the nature of local laws. They have the force of 
statutes. Swindell v. State, 143 Ind. 168; Penn. Co. v. Stegemeier, 118 Ind. 305, 
308; Town of Elwood v. Citizens', etc., Co., 114 Ind. 332; Madison, etc., R. Co. v. 
Taffe, 37 Ind. 361; Penn. Co. v. Hensil, 70 Ind. 569; Simons v. Gaynor, 89 Ind. 165; 
1 Dillon Munic. Corp., §§ 307, 308; Bills v. City of Goshen, 117 Ind. 221; Pittsburgh, 
etc., R. Co. V. Hays, 17 App. 261; Elliott Roads and Streets, p. 625. 

Rules of council — Repeal. — Rules in writing for the regulation of the proceedings of 
the common council, duly enacted, have the force of ordinances. They can not be re- 
pealed upon a mere verbal motion by a majority vote of the council. State v. Swindell, 
146 Ind. 527; Swindell v. State, 143 Ind. 153. 

Charter and ordinances. — The charter is the fundamental law of a city, and when 



121 GOVERNMENT AND POWERS. § 124 

an ordinance of the common council conflicts with any of its provisions, the ordinance 
is necessarily inoperative and void. Mitchell v. Wiles, 59 Ind. 364. 

Upon an amendment or change of the charter the existing ordinances that are in 
harmony with the amendment remain in force ; only those which are in conflict with 
the amended charter are thereby repealed. Chamberlain v. City of Evansville, 77 Ind. 
542; 1 Beach Pub. Corp., § 81. 

Enactment — Mode of procedure. — The mode of procedure in the enactment of ordi- 
nances when committed to the authority or power of a city council, and not regulated 
by the charter laws of that city, may be fixed by an ordinance, which will govern so 
long as it is in force, in the enactment of ordinances. Swindell v. State, 143 Ind. 153 ; 
State V. Swindell, 146 Ind. 527. 

An ordinance providing that all ordinances shall be read three times before being 
passed, and that no ordinance shall pass or be read the third time on the same day in 
which it is introduced unless the rule be suspended by a two-thirds vote, can not be 
annulled or repealed by a mere majority vote. Swindell v. State, 143 Ind. 153 ; State 
V. Swindell, 146 Ind. 527. 

Majority necessary to passag'e. — AVhen there is a quorum of a city council present, 
a majority vote of such quorum present can pass an ordinance. Rushville, etc., Co. v. 
City of Rushville, 121 Ind. 206, 209. 

Taking" effect in the future.— The fact that part of the provisions of an ordinance is 
not to take effect until a date designated in the future will not affect either the validity 
of the entire ordinance nor of the particular provisions. City of Rushville v. Rushville, 
etc., Co., 132 Ind. 575, 578. 

Prior ordinance incorporated by reference. — A prior ordinance may be incorporated 
in a subsequent ordinance and carried forward by appropriate language. Baumgartner 
V. Hasty, 100 Ind. 575, 576. 

Construction of ordinances.— The construction of municipal ordinances is governed 
by the same rules that are applied to statutes. Zorger v. City of Greensburg, 60 Ind. 1 ; 
City of Indianapolis v. Consumers', etc., Co., 140 Ind. 107; Martindale v. Palmer, 52 
Ind. 411; Pittsburg, etc., R. Co. v. Hays, 17 App. 261. 

The title of an ordinance may be considered to ascertain the meaning of the ordi- 
nance. Martindale v. Palmer, 52 Ind. 411. 

An ordinance will be construed independently of a void clause in it, where the void 
clause can be stricken out without affecting the remainder. City of Indianapolis v. 
Bieler, 138 Ind. 30. 

Effect of ordinance valid in part.— The fact that an ordinance regulating the licens- 
ing of vendors of intoxicating liquors requires a license for the sale of a liquor which is 
not the subject of municipal regulation, does not invalidate the ordinance so far as it 
relates to other liquors. Wagner v. Town of Garrett, 118 Ind. 114, 118. 

Amendment of ordinances. — An ordinance can not be amended on motion, but must 
be done by the passage of another ordinance. Bills v. City of Goshen, 117 Ind. 221, 
227 ; Swindell v. State, 143 Ind. 163. 

Power to chang-e or repeal bj^-laws.— The power to pass by-laws, ordinances, or 
regulations affecting the government of a municipal corporation, carries with it by im- 
plication the power to modify or repeal such by-laws, ordinances and regulations, unless 
the power is restricted in the law conferring the right, or unless such change or re- 
peal would affect a vested right under an order or regulation lawfully adopted. Welch 
V. Bowen, 103 Ind. 252, 256. 

Express repeal. — An express repeal of an ordinance can be effected only by an act of 
equal grade wdth that by which the ordinance was originally put in operation. No part 
or feature of an existing ordinance can be changed by a mere resolution of the council, 
even though signed by the mayor and recorded. Nor can such ordinance be changed 
by a motion made and carried. Swindell v. State, 143 Ind. 163 ; Bills v. City of Goshen, 
117 Ind. 221; Horr and Bemis Munic. Ord., § 61. 



§ 124 CITIES. 122 

Eepealed by passag'e of another. — The passage of an ordinance which is within the 
provisions of another ordinance repeals it ^ro tanto. City of Vincennes v. Citizens^ 
etc., Co., 132 Ind. 114, 128. 

Ordinance — Amendment — Repeal — Natural g'as. — Where there is an ordinance 
regulating the price to be charged by companies furnishing natural gas to consumers, a 
subsequent amendatory ordinance which increases the price to be charged by a particu- 
lar company for a certain time, does not repeal the prior ordinance, and, on the expira- 
tion of the time, the prior ordinance controls. Thistlethwaite v. State, 149 Ind. 319. 

Ordinances— Repeal by implication. — The rules which control the repeal of statutes 
by implication are clearly applicable to questions arising relative to municipal ordi- 
nances, and a statute or ordinance which covers the whole subject-matter of an older 
one, adds new provisions, prescribes different penalties, and is evidently intended to 
supersede and take the place of the prior act or ordinance, repeals by implication such 
prior act or ordinance. Terre Haute, etc., R. Co. v. City of South Bend, 146 Ind. 239. 

Effect of repeal on pending- prosecutions.— "If, during the progress of a prosecu- 
tion, the ordinance on which it is based is repealed, the prosecution must fail, unless 
the repealing ordinance contains some express provisions whereby all pending prosecu- 
tions are saved from its operation." Horr and Bemis Munic. Ord., §63; Terre Haute, 
etc., R. Co. v. City of South Bend, 146 Ind. 239. 

When void because unreasonable. — Unless the legislature has, in terms, conferred 
on a municipal corporation the power to pass ordinances relating to a particular subject, 
the courts may inquire into the reasonableness of an ordinance on such subject enacted 
under the general or incidental power of such corporation. Coal Float v. City of Jeffer- 
sonville, 112 Ind. 15, and Railway Company v. Harrington, 131 Ind. 426, modified; 
Champer v. City of Greencastle, 138 Ind. 339. 

Where power exists to pass and enforce an ordinance, there can be no inquiry by the 
courts into the wisdom or reasonableness of the power or its exercise, unless it infringe 
some provision of the constitution. Rund v. Town of Fowler, 142 Ind. 217; Steffy v. 
Town of Monroe City, 135 Ind. 466; Coal Float v. City of Jeffersonville, 112 Ind. 15; 
Cleveland, etc., R. Co. v. Harrington, 131 Ind. 426; Skaggs v. City of Martinsville, 140 
Ind. 476; City of Shelbyville v. Cleveland, etc., R. Co,, 146 Ind. 66. 

An ordinance can not be successfully assailed in a judicial tribunal for unreasonable- 
ness when it has been adopted by express authority of the legislature without conflict 
with any constitutional prohibition or fundamental principles. Belling v. City of Evans- 
ville, 144 Ind. 644. 

Motive not open to inquiry. — The rule that courts will not inquire into the motives 
of the legislative department in the enactment of laws is applicable to the legislative 
acts of municipal corporations. The motive for passing the ordinance by the common 
council can not be inquired into. Lilly v. City of Indianapolis, 149 Ind. 648; 1 Dillon 
Munic. Corp., §311; 1 Beach Pub. Corp., §516. 

General power — Mode of exercise. — When the power granted by the statute is in 
general terms, and the mode and manner of its exercise are not prescribed, but are left 
to the discretion of the city, the courts may inquire whether, in the enactment of the 
ordinance, there has been a reasonable exercise of the power granted, or whether, in 
fact, power was given the city to do what it attempted to do by the ordinance. City of 
Shelbyville v. Cleveland, etc., R. Co., 146 Ind. 66. 

Reasonableness of ordinances— When open to inquiry and when not. — When the 
legislature in terms confers upon a municipal corporation the power to pass ordinances 
of a specified nature and character, and with precision defines the details of the same 
and prescribes the penalties that may be imposed, if the power thus granted be not in 
conflict with the constitution, an ordinance within the power granted, prescribing pen- 
alties within the designated limit, can not be set aside by the courts because they may 
deem it unreasonable, or against public policy. But when the power to legislate upon 



123 GOVERNMENT AND POWERS. § 124 

a given subject is granted, and the mode of its exercise and the details of such legisla- 
tion are not prescribed, then the ordinance passed pursuant thereto must be a reasona- 
ble exercise of the power ; an ordinance which the municipality seeks to uphold by 
virtue of its incidental powers, or under a general grant of authority, will be declared 
invalid, unless it be reasonable, fair and impartial, and not arbitrary or oppressive. 
Pittsburgh, etc., E. Co. v. Town of Crown Point, 146 Ind. 421; City of Shelbyville v. 
Cleveland, etc., E. Co., 146 Ind. 66; Champer v. City of Greencastle, 138 Ind. 339; 
Shea V. City of Muncie, 148 Ind. 14. 

Same. — ^Tiere the power to enact the particular ordinance is specifically conferred 
on the municipahty, the question whether it is reasonable can no more be raised so as 
to affect its vahdity than could the same objection be raised against the statute granting 
the power so as to affect its validity. Shea v. City of Muncie, 148 Ind. 14. 

"An ordinance is not void for want of clearness of expression or on account of a dif- 
ficulty in construing or applying its provisions." "An ordinance is sufficient which 
follows the words of an expressed power." Horr and B. Munic. Ord., §§ 78-193; Shea 
V. City of Muncie, 148 Ind. 14; Neihs v. Hayward, 48 Ind. 19. 

Validity of certain ordinances— Discrimination.— Municipal ordinances placing re- 
strictions upon lawful conduct, or the lawful use of property, must, in order to be valid, 
specify the rules and conditions to be observed in such conduct or business ; and must 
admit of the exercise of the privilege by all citizens alike, who will comply with such 
rules and conditions ; and must not admit of the exercise, or of an opportunity for the 
exercise, of any arbitrary discrimination by the municipal authorities, between citizens 
who will comply. City of Eichmond v. Dudley, 129 Ind. 112; Bills v. City of Goshen, 
117 Ind. 221 ; Yick Wo v. Hopkins, 118 U. S. 356 ; City of Newton v. Belger, 143 Mass. 
598; City of Plymouth v. Schultheis, 135 Ind. 339; Bessonies v. City of Indianapolis, 71 
Ind. 189; Graffty v. City of Eushville, 107 Ind. 502. , 

Same — Eesidents and non-residents. — An ordinance is invalid which discriminates 
in favor of residents of the city or state as against non-residents. City of Indianapolis 
V. Bieler, 138 Ind. 30; Graffty v. City of Eushville, 107 Ind. 502. 

An ordinance will also be void if it discriminates in favor of some residents as against 
other residents. City of Indianapolis v. Bieler, 138 Ind. 30; Bills v. City of Goshen, 117 
Ind. 221; City of Plymouth v. Schultheis, 135 Ind. 339. 

Vahd ordinances are usually binding not only upon the inhabitants of the corpora- 
tion, but also upon strangers and non-residents who come within the corporate limits, 
and the latter, as well as the former, must take notice of their provisions, 1 Dillon 
Munic. Corp., §§ 354, 355, et seq.; 2 Beach Pub. Corp., § 1242, n. 

Natural g'as ordinances, validity of. — Where a city, by ordinance, exercises the 
power given it by statute to regulate the distribution of natural gas, and to require those 
to whom the privilege of using the streets is granted to pay a reasonable license (E. S. 
1894, § 4306), and such ordinance authorizes the licensee to lay its mains through the 
streets, etc., and to take them up from time to time for changes or repairs, a clause in 
such ordinance which provides that the city attorney shall enforce compliance with such 
ordinance and all other ordinances hereafter passed does not reserve the right to such 
city to bind the licensee by a subsequent ordinance, which prohibits it from cutting into 
a certain macadamized street except on certain onerous conditions. City of Indianapo- 
lis V. Consumers', etc., Co., 140 Ind. 107. 

The fact that the macadam pavement was laid after the passage of the ordinance 
licensing the use of the streets for gas mains, and the acceptance thereof by the licensee, 
did not restrict the right of the licensee to lay its mains through the streets in a prudent 
and lawful manner, and from time to time to take them up and repair them, as provided 
by such ordinance. City of Indianapolis v. Consumers', etc., Co., 140 Ind. 107. 

The city of Indianapolis passed an ordinance, as empowered by statute, authorizing 
any corporation for the supply of natural gas to lay mains through the streets, etc.. 



§ 124 CITIES. 124 

and to take them up for repairs or alterations, and requiring the hcensee to file a fifty- 
thousand-dollar bond to restore all streets, etc., ''to as good condition as they were 
before," and to maintain them in such condition for one year, etc. The passage of 
a subsequent ordinance, which prohibited the cutting into any paved street without 
first securing the consent of the council, and filing a bond, etc., was not a valid exer- 
cise of police power as to a licensee which had accepted the former ordinance, and 
complied with all its conditions. City of Indianapolis v. Consumers', etc., Co., 140 
Ind. 107. 

T^Hiere the part of an ordinance which is void for discrimination can be struck out, 
leaving the remainder complete in itself, sensible and capable of being executed against 
all alike, the latter will stand. City of Indianapolis v. Bieler, 138 Ind. 30. 

Validity— Jurisdiction on appeal. — If an ordinance is questioned because it is un- 
constitutional, or in conflict with the statutes, or is unreasonable, these are questions 
concerning the public, and the jurisdiction upon appeal is in the supreme court ; but an 
objection to an ordinance which goes only to matters of form, or to irregularities in the 
proceedings of the municipal authorities, is not a question of that grave character and 
dignity that affect the public, and in such case jurisdiction to determine the validity of 
the ordinance assailed is entertained by the appellate court. Pittsburg, etc., R. Co. v. 
Hays, 17 App. 261 ; City of Hammond v. New York, etc., R. Co., o App. 526; Dugger v. 
Hicks, 11 App. 375; New Albany, etc., Co. v. Crumbo, 10 App. 360. 

Interstate commerce. — Ordinances which discriminate against residents of other 
states, who are engaged in selling goods located in such other states, are void, on the 
ground that they interfere with interstate commerce. Martin v. Town of Rosedale^ 
130 Ind. 109; McLaughlin v. City of South Bend, 126 Ind. 471; 1 Beach Pub. Corp., 
§§ 506, 507. 

Ordinances which discriminate against other communities of the same state are void, 
because in conflict with § 23, art. 1, of the state constitution. Graffty v. City of Push- 
ville, 107 Ind. 502. 

Ordinances must be general in their nature and impartial in their operation. Citi- 
zens', etc., Co. V. Town of Elwood, 114 Ind. 332, 338; Indianapolis Cable, etc., Co. v. 
Citizens', etc., Co., 127 Ind. 369; Crowder v. Town of Sullivan, 128 Ind. 489. 

When validity not in question — Action. — An action to recover the penalty pre- 
scribed for the violation of an ordinance does not necessarily call in question the valid- 
ity of the ordinance. Griffee v. Town of Summitville, 10 App. 332. 

A person having no interest under an ordinance can not successfully attack it on the 
ground of invalidity. Long v. City of Portland, 151 Ind. 442. 

Collateral attack. — Where the right and power of a common council of a city to pass 
a resolution depends on the existence of antecedent facts, the decision and recitation of 
the council that such facts do exist is conclusive ; and such resolution can not be at- 
tacked collaterally in an action to enforce it by showing that the recitations of the 
council in the resolution relative to the existence of such facts were false. City of In- 
dianapolis V. Consumers', etc., Co., 140 Ind. 246; Evansville, etc., P. Co. v. City of 
Evansville, 15 Ind. 395; McEneney v. Town of Sullivan, 125 Ind. 407; Town of Cicero 
V. Williamson, 91 Ind. 541 ; Picketts v. Spraker, 77 Ind. 371 ; Dupuy v. City of Wabash, 
133 Ind. 336. 

Proceeding's of council— Jurisdiction— When void— Injunction.— When the com- 
mon council proceeds without jurisdiction its proceedings are void, and in such case in- 
junction is the proper remedy. City of Ft. Wayne v. Shoaff, 106 Ind. 66; Goring v. 
kcTaggart, 92 Ind. 200; Wilson v. Poole, 33 Ind. 443; Balfe v. Lammers, 109 Ind. 347, 
349. 

Injunction — Multiplicity of actions. — A court of equity may enjoin the enforcement 
of a void city ordinance in order to prevent a multiplicity of actions, or at the instance 
of any persons whose interests are to be injuriously affected thereby ; but if it is noti 



125 GOVERNMENT AND POWERS. § 124 

void, a court of equity can not determine whether or not the plaintiff is guilty of its 
violation. Davis v. Fasig, 128 Ind. 271; City of Rushville v. Rushville, etc., Co., 132 
Ind. 575. 

Unless the party asking an injunction points out some particular provision in the 
ordinance that infringes upon his rights and privileges, in order to justify a court in 
declaring an ordinance void, the ordinance must be void in toto. Davis v. Fasig, 128 
Ind. 271. 

First. To regulate or prohibit the use of hand organs, or instru- 
ments of any annoying character, or music of itinerant performers, 
in the streets, lanes, alleys, or public places of the city. 

Second. To fill up or drain any lot or parcel of ground within such 
city, or within two miles thereof, whenever water has or may become 
so stagnant or noxious as to be, in the opinion of such council, a 
nuisance, and injurious to the health or comfort of such city or any 
part thereof, at the expense of the owner thereof, under such reason- 
able regulations as the common council shall prescribe: Provided, 
hoivever, that not to exceed ten per cent, of the value of such lot or 
land as the same is valued and assessed on the tax duplicate for city 
purposes, shall be expended in filling up or draining the same in any 
one year. 

Drainag'B — Legislative power.— The power of a city to drain lands within or without 
its corporate limits is a legislative power, to be exercised or not at discretion, and such 
discretion can not be surrendered by contract with the owners of such lands. City of 
Peru V. Gleason, 91 Ind. 566 ; Hamilton v. City of Shelbyville, 6 App. 538. 

The governmental functions and powers of a municipal corporation must remain free 
and untrammeled to be exercised for the benefit of the inhabitants as the emergencies 
may arise, and a municipal corporation can not make a contract to furnish drainage for 
the lands of a private person. Such a contract, being a limitation on the governmental 
functions, is absolutely void. 

Where a complaint against a municipal corporation, for failure to properly construct 
a ditch and keep it in repair, declares upon a contract such action must fail. Hamilton 
V. City of Shelbyville, 6 App. 538. 

City not liable on contract. — Within and adjoining a city was a tract of swampy 
land, injurious to the public, for the purpose of draining which the city contracted witii 
G., a proprietor of a part of the swamp outside of the city limits, and other separate 
owners of parts of it within and without, whereby the city agreed to make a ditch 
within its limits, to serve as an outlet, and each proprietor to continue the same through 
his own tract. This would have rendered the swampy land valuable. G. and the other 
proprietors performed their agreement, but the city failed. The city was not liable for 
damages for breach of the contract. City of Peru v. Gleason, 91 Ind. 567. 

Drain ag'e — Use of liig"liway. — A municipal corporation has authority to use a public 
way lying outside of its boundaries for the purpose of drainage, without paying or ten- 
dering damages to adjacent property owners, and for consequential injuries resulting 
from the proper and reasonable exercise of such authority there can be no recovery. 
For injury resulting from a negligent error in the plan of a drain or sewer the city will 
be liable. Cummins v. City of Seymour, 79 Ind. 491. 

Third. To prevent or regulate the use of firearms, fireworks or other 
things or practices tending to endanger personal property. 
Explosives— Liability of city.— A city is not liable for damages caused to the prop- 



§ 124 CITIES. 126 

erty of a citizen by the negligent manner in which other persons, acting under permis- 
sion from the mayor, fire explosives within the city. AYheeler v. City of Plymouth, 116 
Ind. 158. 

Fourth. To direct the location of tallow candleries, soap factories, 
and other buildings or structures; and to prohibit the erection of such 
buildings or the continuance of noxious trades or business therein, 
whenever the health or welfare of the city shall require the same; and 
for that purpose shall have jurisdiction two miles in every direction 
from the city limits. 

Tallow chandleries— Soap factories— Slaug'hter-house, etc.— A municipal corpora- 
tion seeking, by ordinance, to place a restriction on the lawful use of property, must 
specify in such ordinance the rules and conditions to be observed in such business, and 
must permit the exercise of the privilege to all citizens who will comply with the condi- 
tions, and must not admit of the exercise, or of an opportunity of an exercise, of any 
arbitrary discrimination by municipal authorities between citizens so complying, other- 
wise the ordinance will be void. City of Plymouth v. Schultheis, 135 Ind. 339 ; City of 
Eichmond v. Dudley, 129 Ind. 312; Bessonies v. City of Indianapolis, 71 Ind. 189. See 
Shea V. City of Muncie, 148 Ind. 14. 

Fifth. To establish cemeteries, or burial places within or without 
such city, and to provide for the sanctity of the dead, and to prohibit 
interments except in cemeteries heretofore established by law. 

Power over cemeteries. — Cities can only subject to the control of the city sexton 
the cemeteries that belong to the cities. Bogert v. City of Indianapolis, 13 Ind. 134. 

The authorities of a city have no power to prohibit the establishment of cemeteries or 
burying-grounds outside of city limits, nor have they any control over them when so 
established, under this clause ; but see subsequent legislation, post, § 1096, et seq. Be- 
gein V. City of Anderson, 28 Ind. 79. 

Cities have absolute authority to determine the necessity of establishing cemeteries. 
City of Greencastle v. Hazelett, 23 Ind. 186. 

Bodies of the dead — Ownership. — The bodies of the dead belong to the surviving 
relatives, in the order of inheritance, as other property, and they, and not the executor 
or administrator, have the right to the custody and burial of the same. Eenihan v. 
Wright, 125 Ind. 536. 

Upon question of a city's liability for removal of dead body from a lot in which it is 
interred to a lot used as a common burial ground, see Hamilton v. City of New Albany, 
30 Ind. 482. 

Sixth. To establish quarantine regulations. 

Seventh. To preserve peace and good order, prevent vice and im- 
morality and quell riots and disorderly assemblages. 

Eighth. To establish and regulate the police of the city; and may 
in their discretion authorize the mayor or a board of police to be se- 
lected by the common council, to make all appointments of officers 
and members of such police, and give such mayor or board of police 
full power to remove from office any officer or member of such police 
for neglect of duty or other good cause. 

Police officers not city off icers— State officers— Neg-lig-ence— Liability.— The police 
officers of a city are not its agents or servants, and it is not responsible for their negli- 
gence. The rule of respondeat superior has no appUcation in such case. City of Lafayette 



127 GOVERNMENT AND POWERS. § 124 

V. Timberlake, 88 Ind. 331 ; Faulkner v. City of Aurora, 85 Ind. 130, 135 ; Town of 
Laurel v. Blue, 1 App. 128; Hopewell v. State, App. Ct., June 9, 1899. 

It will be presumed that policemen duly appointed by a city have the ordinary powers 
of peace officers at common law. Doering v. State, 49 Ind. 56 ; Hopewell v. State, App. 
Ct., June 9, 1899. 

Interfering* witll officer.— The interfering with a policeman in the discharge of his 
duty is, under the statute of 1883, a criminal offense, and cities can not pass ordinances 
to recover penalties therefor. City of Indianapolis v. Huegele, 115 Ind. 581. 

Ninth. To suppress gaming and gaming houses and houses of ill 
fame; to prohibit and destroy instruments and devices of gaming; and 
restrain fraudulent practices within said city. 

It is probable this clause now has no validity. See post, §1383; also statutes on 
crimes and misdemeanors. 

This clause does not, by its terms, provide for the prohibition and destruction of in- 
struments, and devices for gaming, and is not self -executing, but requires an ordi- 
nance to make it effective. Ridgeway v. West, 60 Ind. 371 ; State v. Robbins, 124 Ind. 
312. 

The words "game" and "gaming" used in this clause and clause 14, are used in the 
sense in w^hich they are employed in the criminal code of this state, as meaning a game 
upon the result of which something of value is staked and must be lost and won. Will- 
iams V. City of Warsaw, 60 Ind. 457. 

Visiting' houses of ill fame. — No power is conferred by this clause upon the common 
council to impose a penalty upon any person for visiting or residing within a house of 
ill fame outside of the corporate limits of the city. Robb v. City of Indianapolis, 38 
Ind. 49. 

A complaint which alleged that the defendant, on, etc., did "keep a house of ill fame 
and prostitution within said city," etc., sufficiently describes the offense, under an or- 
dinance prohibiting the "keeping of a house of ill fame in said city," etc. City of 
Greensburgh v. Corwin, 58 Ind. 518. 

A prosecution can not be maintained for associating with a prostitute in a private 
place in a city under an ordinance providing a penalty for associating with a prostitute 
"in any public place, street, alley or common" within said city, etc. Zorger v. City of 
Greensburgh, 60 Ind. 1. 

Tenth. To compel the occupants of any building or outhouse situate 
upon any real estate in such city, that is filthy or unwholesome, to 
abate or cleanse the same, and to clean the street and alleys adjoining 
such property. 

Eleventh. To direct the location of market or slaughter houses, or 
powder magazines, and to regulate the same; and for that purpose 
shall have jurisdiction for two miles in all directions from the city 
limits. 

Slaug-hter-house— Ordinance— Validity.— An ordinance prohibiting the maintenance 
of any slaughter-house within the city, when authorized by statute, can not be defeated 
by the courts on the ground that it is unreasonable. Belling v. City of Evansville, 144 
Ind. 644; Rund v. Town of Fowler, 142 Ind. 214. 

The necessity or expediency of prohibiting slaughter-houses in a city is implied from 
the ordinance making that prohibition, without any provision for investigation into the 
character or condition of the slaughter-houses. Belling v. City of Evansville, 144 Ind. 
644. 

Slaug-hter-house- Nuisance.— A slaughter-house, erected or conducted in violation 
of an ordinance prohibiting its maintenance within the corporate limits of a town, be- 



§ 124 CITIES. 128 

comes a nuisance, although it would not be such in the absence of such ordinance. 
Rundv. Town of Fowler, 142 Ind. 214. 

Slaug-hter-house— Injunction.— A slaughter-house in use in a populous part of a city 
is prima facie a nuisance, and its use as such may be enjoined at the suit of neighbor- 
ing residents, when it is shown by the evidence to be in fact an injury or annoyance. 
Reichert v. Geers, 98 Ind. 73. 

An incorporated town may declare the keeping and maintaining a slaughter-house 
within the corporate limits of a town to be a nuisance, and may prohibit the same. 
Rund V. Town of Fowler, 142 Ind. 214. 

Nuisances. — The erection or maintaining of anything that is injurious to health, in- 
decent, offensive to the senses, or an obstruction to the free use of property, so as 
essentially to interfere with the comfortable enjoyment of life or property, constitutes a 
private nuisance. Injunction will lie for an injury of this kind. Tyner v. People's Gas 
Co., 131 Ind. 408; Ohio, etc., W. Co. v. Simon, 40 Ind. 278; Owen v. Phillips, 73 Ind. 
284; Williamson v. Tingling, 93 Ind. 42; Smith v. Fitzgerald, 24 Ind. 316; Reichert 
V. Geers, 98 Ind. 73. 

Markets, — The city council has no jurisdiction to improve the property of the city, 
held and used for market purposes, at the expense of owners of adjoining lots. Such 
proceedings are void, and may be enjoined. City of Ft. Wayne v. Shoaff, 106 Ind. 66. 

The statute contemplates the use by the city of its own lands for the location of a 
public market. The city has no power to establish a market in a public street, or to 
authorize the occupancy of the same for such purpose. The abutting lot owner may en- 
join such use, being injured in a manner different in kind and in degree from the gen- 
eral public. City of Richmond v. Smith, 148 Ind. 294. 

Twelfth. To regulate the uses of coaches, hacks, drays and other 
vehicles for transportation of passengers, freight or other articles, to 
or from any points within the city, for hire or pay. 

Regfulation of vehicles. — A city has power to enact ordinances authorizing police 
officers to prescribe the places where omnibuses, hacks and other vehicles shall stand 
at a railroad depot, and requiring drivers to obey the directions of such officers in re- 
gard to the places which their respective vehicles shall occupy. Veneman v. Jones, 118 
Ind. 41. 

License. — The power to regulate implies the power to license and to exact a reason- 
able fee for such license. Tomlinson v. City of Indianapolis, 144 Ind. 142, 145; Smith 
V. City of Madison, 7 Ind. 86; Scudder v. Hinshaw, 134 Ind. 56. 

Railroads — Depots — Reg'ulations. — A railroad company may make reasonable rules 
and regulations to prevent quarrels between the owners of competing omnibus lines and 
their employes while upon depot grounds, and may designate the stand each shall 
occupy. Lucas v. Herbert, 148 Ind. 64. Rules must not discriminate; they must be 
uniform in operation ; exclusive right to stand hacks can not be granted. Indianapo- 
hs, etc., R. Co. V. Dohn, Ind. Sup. Ct., May 23, 1899. 

Thirteenth. To license, regulate, and restrain all shops, inns, tav- 
erns, or other places where intoxicating liquors are kept for sale, to 
be used in and upon the premises, and in regulating, restraining and 
licensing such inns, taverns, shops or places aforesaid, they shall have 
the power to designate the room, building or structure where such 
liquors ma}^ be sold, and may exclude such sales from the suburban 
or residence portion of such city, and confine the places where such 
sales may be made, to the business portion of such city, and may 
direct the arrangement and construction of the doors, windows and 
openings of the particular room in such building where such sales 
may be had, or such intoxicating liquors be drunk, and may direct 



129 GOVERNMENT AND POWERS. § 124 

the location, arrangement and construction of the bar kept therein, 
and the interior arrangement and construction of such room, and may 
direct -what games may be carried on therein, and may forbid the 
keeping or use of wine rooms. 

See post, §§ 210 and 994. 

For full text of laws regulating sale of intoxicating liquors, see R. S. 1894, §§ 7276- 
7288; Burns' Supp. 1897, § 7276. 

]S'ote. — This clause was amended and much enlarged by the Acts of 1895 (Burns' Supp. 
1897, § 3541). The cases cited were most of them decided prior to such amendment. 

Statutory offense- City ordinance.— E. S. 1894, § 1709 (i^os^, §1383), prohibiting 
towns and cities from making acts punishable by ordinance which are made public 
offenses and punishable by the state, does not apply to an ordinance providing a punish- 
ment for selling intoxicating liquor without first procuring a license from the town or 
city, that not being an offense under the statute of the state. Clevenger v. Town of 
Rushville, 90 Ind. 258, 260; Zeller v. City of Crawfordsville, 90 Ind. 262, 263; City of 
Frankfort v. Aughe, 114 Ind. 77, 79. 

Intoxicating' liquor— City license. — Municipal corporations have power to exact a 
license from one who has a state or county license, as well as from all other persons 
who keep shops for the sale of intoxicating liquors to be used on the premises. Lutz v. 
City of Crawfordsville, 109 Ind. 466, 469; City of Frankfort v. Aughe, 114 Ind. 77, 78; 
Emerich v. City of Indianapolis, 118 Ind. 279; Moore v. City of Indianapolis, 120 Ind. 
483, 487; Decker v. Sargeant, 125 Ind. 404, 407; Shea v. City of Muncie, 148 Ind. 14; 
City of Elkhart v. Calvert, 126 Ind. 6. 

Intoxicating- liquors— Sales under license by United States.— A person who sells 
intoxicating liquors under and by virtue of a license by the United States is amenable 
to § 4 of the act of March 11, 1895 (Burns' Supp. 1897, § 7283d), providing that, during 
the days and hours when the sales of intoxicating liquors are prohibited by law, the 
room in which such liquors are sold as a beverage shall be so arranged that the whole 
of the interior may be viewed from the street or highway on which the same is situ- 
ated. State V. Mathis, 18 App. 608. 

License.— Cities have power to require persons selling intoxicating liquors for use on 
the premises within the corporate limits, and for two miles beyond, to procure a license 
from the city. Lutz v. City of Crawfordsville, 109 Ind. 466; City of Frankfort v. Aughe, 
114 Ind. 77; Emerich v. City of Indianapolis, 118 Ind. 279; City of Lawrenceburg v. 
Wuest, 16 Ind. 337; Wiley v. Owens, 39 Ind. 429; Sweet v. City of Wabash, 41 Ind. 7; 
Zeller v. City of Crawfordsville, 90 Ind. 262. 

The power to regulate and license the sale of intoxicating liquors does not authorize 
cities to pass an ordinance prohibiting the sale of intoxicating liquors. Loeb v. City of 
Attica, 82 Ind. 175; Sweet v. City of Wabash, 41 Ind. 7; Duckwall v. City of New Al- 
bany, 25 Ind. 283; Steffy v. Town of Monroe City, 135 Ind. 466; 1 Beach Pub. Corp., 
§600. 

An ordinance which prohibits the sale, barter or giving away of intoxicating liquors 
without a license, is valid. Vinson v. Town of Monticello, 118 Ind. 103. 

Unless a statute expressly grants the power to do so, a municipal corporation can not 
require a license for the sale of intoxicating liquors. AValter v. Town of Columbia City, 
61 Ind. 24; Cowley v. Rushville, 60 Ind. 327; Deutschman v. Town of Charlestown, 40 
Ind. 449. 

Amount of tax— Prohibitory.— What will amount to a prohibitory tax is a question 
of fact. On trial for a violation of an ordinance imposing a license tax, evidence is 
proper to show that the amount of the tax is in effect prohibitory of the sale. Sweet v. 
City of Wabash, 41 Ind. 7. 

The exaction, by a city, of license money, in the sum of five hundred dollars from each 
CiT. AND To.— 9 



§ 124 CITIES. 130 

retail dealer of intoxicating liquors, can not be considered, as matter of law, unreason- 
able or objectionably prohibitory. Wiley v. Owens, 39 Ind. 429, 

Where a city is granted power, by the legislature, "to tax, license and regulate dis- 
tilleries and breweries," etc., an ordinance imposing a license fee is an exercise oi po- 
lice power in restraint of a harmful occupation, and the fee to be required is subject to 
the discretion of the city authorities. City of Indianapolis v. Bieler, 188 Ind. 30. 

Nature of license— Police power— Revocation.— A license to sell intoxicating liquors 
is not a contract, but a restrictive special tax imposed in the exercise of the police power 
of the state, and it may be changed or even annulled by the legislature whenever the 
public welfare demands it. It has none of the elements of a contract, and it may be 
revoked even though based upon a valuable consideration. It may be revoked without 
refunding the consideration paid therefor. McKinney v. Town of Salem, 77 Ind. 213, 
214; Hedderich v. State, 101 Ind. 564,569; State v. Bonnell, 119 Ind. 494, 495; Moore v. 
City of Indianapohs, 120 Ind. 483, 491 ; Haggart v. Stehlin, 137 Ind. 43, 64; Shea v. City 
of Muncie, 148 Ind. 14 ; Nelson v. State, 17 App. 403 ; State v. Gerhardt, 145 Ind. 439. 

Not repealed— Constitutional.— The act of 1895 (Burns' Supp. 1897, § 3541), amend- 
ing this section, was not repealed by implication by the act of March 11, 1895 (Burns' 
Supp. 1897, § 7283a, et seq.), known as the ** Nicholson law"; nor is said amendment 
void as being in conflict with §§22, 23, art. 4 of the constitution, prohibiting local laws; 
nor is the act void because authorizing a prohibition of the sale of intoxicating liquors 
in certain localities ; nor is it void because violating § 19 of art. 4 of the state constitu- 
tion, requiring the subject of the act to be expressed in the title ; nor is it void because 
in conflict with § 23, art. 1 of the state constitution upon the subject of privileges and 
immunities to citizens. Shea v. City of Muncie, 148 Ind. 14. 

Maintaining" a saloon in residence portion of city— Nuisance— Damag'es. — A saloon 
established in the portion of a city devoted to residences, churches, Sunday schools, 
orphan asylums, female colleges and public schools, which depreciates the value of prop- 
erty in the vicinity, both for sale and rent, may constitute a nuisance, and in such case 
a license to sell intoxicating liquors does not constitute a justification. The landlord 
who rents his premises for the purpose of establishing a nuisance thereon is also liable 
for damages. Haggart v. Stehlin, 137 Ind. 43. 

Sale of liquors —Restriction— Validity of ordinance.— An ordinance under the above 
section making it unlawful to sell intoxicating liquors in the "residence portions of the 
city" and providing that all such sales "shall be confined to the business portion there- 
of," is not void because too uncertain and indefinite as to the boundaries of the locali- 
ties designated "business portion" and "residence portion" of said city. The ordinance 
is as definite and certain as the statute, and this is sufficient. Shea v. City of Muncie, 
148 Ind. 14. 

Same — License no defense. — In a prosecution under such an ordinance for the viola- 
tion thereof, a license issued to the defendant by the city under another and prior ordi- 
nance is no defense. Shea v. City of Muncie, 148 Ind. 14. 

Same — Estoppel. — The payment of the license fee and the retention thereof by the 
city does not estop the city from enforcing such ordinance against selling in the resi- 
dence portion of the city. Shea v. City of Muncie, 148 Ind. 14. 

Same — "Residence portion" defined, — If a certain part of the city, large or small, is 
principally and chiefly used for residence purposes, families residing and having their 
homes therein, the same is a "residence portion" of the city. Such part of the city 
would not become a "business portion" of the city merely because a grocery or other 
business was here and there carried on therein. The decided preponderance of resi- 
dences and families residing therein determines the character of such portion of the 
city. Shea v. City of Muncie, 148 Ind. 14. 

Abridgement of police powers. — A law regulating or authorizing municipal corpora- 
tions to regulate and impose restrictions upon the sale of intoxicating liquors is an exer- 



131 GOVERNMENT AND POWERS. § 124 

cise of the police poAver of the state, and neither the state nor the municipaUty can, by 
any sort of contract, hcense, or permit, abdicate, embarrass, or bargain away its right 
to exercise the poAver in snch a manner as it may thereafter deem the public welfare 
requires. INIoore v. City of Indianapolis, 120 Ind. 483, 490. 

Tested rig'lit, i)olice power. — A permit by the state to sell intoxicating liquors is but 
an exercise of its police power, in which no one can acquire a vested right or contract- 
ual interest, and is revocable by the legislature at any time ; and an ordinance in pur- 
suance of a legislative act, wliich increases the fees for an unexpired license, is a valid 
ordinance. Moore v. City of Indianapolis, 120 Ind. 483, 491. 

License not transferable. — A license to sell intoxicating liquors is not transferable, 
and the purchaser of a saloon from one who has been licensed to sell intoxicating liquors 
is not protected, in conducting such business, by the licenses of his vendor. Heath v. 
State, 105 Ind. 342; Strahn v. Hamilton, 38 Ind. 67; Pierce v. Pierce, 17 App. 107. 

Ag'ent and partner.— Under a license for the sale of intoxicating liquors the licensee 
may sell by an agent and the license will protect the agent in making the sale ; but a 
license granted to one member of a copartnership, consisting of two or more persons, 
does not authorize a sale of intoxicating liquors belonging to such firm by an unlicensed 
member thereof, nor by all jointly, for their joint benefit. Shaw v. State, 56 Ind. 188; 
Keiser v. State, 58 Ind. 379, 382; Spaulding v. Natham, 21 App. 122. 

License fees— Amount— Invalidity of ordinance — Recovery of.— Where license fees 
have been voluntarily paid under invalid ordinances of towns requiring a hcense to sell 
liquors, the same can not be recovered in an action against such town. Colglaizer v. 
Town of Salem, 61 Ind. 445; Town of Brazil v. Kress, 55 Ind. 14; Town of Edinburg 
V. Hackney, 54 Ind. 83; Board, etc., v. Kreuger, 88 Ind. 231; Town of Ligonierv. Ack- 
erman, 46 Ind. 552; Town of Sullivan v. McCammon, 51 Ind. 264. 

Where the town contracts to repay the fee, in case the ordinance is adjudged invalid, 
and the ordinance is thereafter held invalid, the person paying the fee may recover the 
same upon such contract. Town of Columbia City v. Anthes, 84 Ind. 31. 

A vender of intoxicating liquors can not maintain an action for a mandate to compel 
a city treasurer to accept a license fee under an ordinance of a city, in order that he 
may, prior to the expiration of a license previously issued to him, demand of the city 
clerk a new license. Municipal authorities are not bound to issue a license to a person 
holding an unexpired license. State v. Bonnell, 119 Ind. 494. 

Where municipal corporations are authorized to require a license from dealers in in- 
toxicating hquors, and the law does not limit the amount to be paid therefor, such cor- 
porations may determine the amount. AViley v. Owens, 39 Ind. 249; Sweet v. City of 
Wabash, 41 Ind. 7. 

The act of March 11, 1889 (R. S. 1894, § 7282), empowering cities and incorporated 
towns to increase the sum theretofore required to be paid for a license to sell intoxicat- 
ing liquors, is not invalid as violating § 21, art. 4 of the state constitution. Bush v. City 
of Indianapohs, 120 Ind. 476; Moore v. City of Indianapolis, 120 Ind. 483, 486. 

The act of 1875 (R. S. 1894, § 7276, et seq.}, regulating the sale of intoxicating liquors, 
saving § 7282, R. S. 1894, limiting the amount which cities may demand for license to 
sell intoxicating liquors, relates exclusively to licenses issued by the board of county 
commissioners, and therefore § 7284, R. S. 1894, providing that '*No license herein pro- 
vided shall be granted for a greater or less period than one year," applies only to licenses 
granted by the county board, and not to licenses granted by cities. IMoore v. City of 
Indianapohs, 120 Ind. 483, 486. 

Intoxicating" liquor— Jurisdiction— Special tax.— The legislature may empower mu- 
nicipal corporations to lay a special tax upon persons engaged in selling intoxicating 
liquors, and it may also determine over what territory the jurisdiction of such corpora- 
tions shall extend. Emerich v. City of Indianapolis, 118 Ind. 279, 280. 

Restriction of business.— The object of this class of legislation is to restrict the busi- 
ness of liquor selling, and not to secure to the vendors the protection of the municipal 



§ 124 CITIES. 132 

government, and therefore one is not exempted from the payment of the special tax 
because his place of business is outside of the corporate limits. Emerich v. City of In- 
dianapolis, 118 Ind. 279, 280. 

Prohibiting' screens in saloons.— R. S. 1894, §§ 3541, 3615 (§ 124, clause 13, and post, 
§210), which empower cities ' 'to regulate and license all inns, taverns or other places 
used or kept for public entertainment ; also, all shops, or other places kept for the sale 
of liquors to be used in and upon the premises," and "to regulate all places where in- 
toxicating liquors are sold to be used on the premises," and the general welfare clause 
— do not empower cities to pass ordinances prohibiting the use of screens or other ob- 
structions to the view at the doors and windows of saloons, and the courts may inquire 
into the reasonableness of an ordinance of such character. Champer v. City of Green- 
castle, 138 Ind. 339; Steffy v. Town of Monroe City, 135 Ind. 466. 

Eemoval of screens — Municipal corporations.— A municipal corporation has not the 
power to make an ordinance requiring the removal, from the doors or windows of 
saloons, of all screens and other obstructions to the view of the interior of, and busi- 
ness transacted within, such saloon ; such an ordinance being void, as being prohibitive 
of a lawful business, and not merely regulative. Steffy v. Town of Monroe City, 135 
Ind. 466, 467. 

An ordinance providing that any one keeping a saloon where intoxicating liquors are 
sold to be drunk on the premises shall close the same for the night at 11 o'clock p. m. of 
each day, at which time such person shall raise all door screens and remove any ob- 
structions, so as to give an unobstructed view of the interior, and require all other per- 
sons to vacate said premises, and shall not reopen the same until 5 o'clock a. m. the 
following morning, is a valid ordinance. Such ordinance in no way infringes upon the 
business of the saloon-keeper, as he is entitled to carry it on under his license. Decker 
V. Sargeant, 125 Ind. 404; Davis v. Fasig, 128 Ind. 271. 

Proximity of business to town and city, — The fact that the vendor's place of busi- 
ness is within two miles of both a town and a city does not impair the right of the latter 
to exact a license fee, as its jurisdiction extends so far, while that of the town does not. 
Emerich v. City of Indianapohs, 118 Ind. 279, 281. 

Eefusal to apply — Estoppel. — One who refuses to apply for a license under an ordi- 
nance passed in pursuance of R. S. 1894, § 7282, will be estopped to complain, while 
continuing to sell liquors in violation of the ordinance, that a section of the ordinance, 
by providing for a clerk's fee of one dollar, in addition to the license fee, has exceeded 
the authority of the council. Moore v. City of Indianapolis, 120 Ind. 483, 488. 

Fermented cider an intoxicating' liquor. — It seems that the sale of fermented cider, 
which is an intoxicating liquor, is a proper subject of municipal regulation. Wagner v. 
Town of Garrett, 118 Ind. 114, 118. 

To sell, barter or g'ive away. — An ordinance v/hich prohibits the sale, barter or giv- 
ing away of intoxicating liquor without a license, is valid. The substantive grant con- 
tained in the statute is the power to license, regulate and restrain the sale of intoxi- 
cating liquors, but as a necessary incident to this power is included the power to pro- 
hibit the bartering or giving away of intoxicating liquors. Vinson v. Town of Monti- 
cello, 118 Ind. 103, 104. 

Bowling' saloon. — Under the charter of the city of Madison, approved February 14, 
1848, the council had the right, by ordinance, to suppress bowling saloons, or to permit 
them to exist under such restraints as the council chose to impose. Smith v. City of 
Madison, 7 Ind. 86. 

Fourteenth. To regulate and restrain all tables, alleys, machines, 
devices or places of any kind for sports or games, kept for hire or pay, 
or to prohibit the use of the same as aforesaid, if deemed expedient, 
without a license first being obtained therefor; and if deemed neces- 



133 GOVERNMENT AND POWERS. § 124 

sary to preserve peace, good order, and morality, to prohibit the use 
of the same, as aforesaid, by the infliction of such penalties as this 
act will permit, to be provided for by ordinance. 

The word game, as used in this clause, is used in the sense in Avhich it is employed in 
the criminal code, as meaning a game upon the result of which something of value is 
staked and must be lost and won. Williams v. City of Warsaw, 60 Ind. 457. 

Fifteenth. To regulate and restrain all theatrical and other exhibi- 
tions and public shows for which money is demanded or received; and 
if deemed expedient to prohibit the same, without a license having 
been first obtained therefor. 

Regulating" place of amusement— License fees. — An ordinance in reference to the 
licensing of a place of amusement is invalid if a fixed and definite license fee is not 
named therein, which all persons engaged in like business must pay, and if it does not 
state the duration of the license to be issued. Bills v. City of Goshen, 117 Ind. 221 ; City 
of Richmond v. Dudley, 129 Ind. 112, 115. 

Sixteenth. It is expressly provided that lectures on scientific, his- 
toric, benevolent or literary subjects, and the apparatus for the 
elucidations of the same and specimens of fine arts, shall not be deemed 
within the provisions of this act. 

Seventeenth. To prevent immoderate riding or driving and cause the 
person guilty of the same to be stopped thereat by any officer of said 
city. 

See clauses 39 and 42. 

Reg'ulation of travel on street.— It is the duty of town authorities, and they have 
ample power, to regulate public travel upon the streets so as to make their use at all 
times safe for those who have occasion to go upon them. This power extends to all 
reasonable regulations as to railroad crossings, running of hacks and omnibuses, to fast 
driving and to any other use of the street which may make travel upon it dangerous to 
the public. Scudder v. Hinshaw, 134 Ind, 56. 

Law of road— Use of street. — The statute which provides that any person who shall, 
when driving any vehicle, fail to pass to the right when meeting another vehicle, etc., 
shall forfeit the sum of five dollars, etc., applies only to country roads. In cities and 
to\^'ns, in the absence of ordinances or a statute to the contrary, a person has the right 
to travel in and upon any part of the street, from curb to curb, so long as he does not 
interfere with the rights of other travelers. City of Decatur v. Stoops, Ind. App. Ct., 
Jan. 10, 1899. 

Eighteenth. To prevent the incumbering of the streets, squares, side- 
walks, and crossings with vehicles or any other substance or materials 
whatever, interfering with the free use of the same. 

See clause 32, and note. 

Obstruction of a street a misdemeanor.— The wrongful obstruction of a public street 
or sidewalk of a city is a misdemeanor punishable under the criminal law of the state, 
and a city can not enact an ordinance prescribing a penalty for any one who obstructs 
such street. The statute making it an offense to drive over the sidewalk of a " town " 
also makes it an offense to drive over the sidewalk of a " city," although the word city 
be not used therein. City of Indianapolis v. Higgins, 141 Ind, 1 ; Boyer v. State, 16 
Ind, 451 ; State v. Berdetta, 73 Ind, 185. 



§ 124 CITIES. 134 

Obstructions in street— Liability of city.— A city which permits an obstruction to 
remain an unreasonable length of time upon its streets or sidewalks, until the presump- 
tion arises that it had notice of such obstruction, is liable therefor to the same extent as 
if it had itself placed the same there in the first instance. Senhenn v. City of Evans- 
ville, 140 Ind. 675; Glantz v. City of South Bend, 106 Ind. 305. 

Cities are required to keep the streets free from obstructions, or they will be liable 
for damages resulting therefrom. City of Indianapolis v. Gaston, 58 Ind. 225; City 
of Evansville v. Wilter, 86 Ind. 414. 

Streets — Sidewalks — Crossing's. — It is the duty of an incorporated city to keep all 
its streets, sidewalks and crossings in a reasonably safe condition and free from unnec- 
essary and dangerous obstructio*ns, so as not to endanger the safety of those lawfully 
using the same, and it is liable for negligently suffering them to become and remain 
unsafe to any one injured thereby. City of Lafayette v. Larson, 73 Ind. 367, 369; City 
of Delphi V. Lowery, 74 Ind. 520, 523; City of Crawfordsville v. Smith, 79 Ind. 308, 310; 
Murphy v. City of Crawfordsville, 83 Ind. 76, 77; Turner v. City of Indianapolis, 96 
Ind. 51, 55; City of Aurora v. Bitner, 100 Ind. 396, 399; Glantz v. City of South Bend, 
106 Ind. 305, 309; City of Ft. Wayne v. Patterson, 3 App. 34, 37; Park v. Board, etc., 3 
App. 536, 539; City of Bloomington v. Rogers, 83 Ind. 261. 

Streets — Sidewalks — Wrong'-doer— Notice. — Where an obstruction is placed on a 
street or sidewalk by a wrong-doer, on account of which a passer-by is injured, the city 
can not be held liable for such injury unless it has actual notice of the obstruction, or 
the" same has remained on such street or sidewalk such a length of time as to make it 
the duty of the corporate authorities to take notice of its existence. City of Warsaw v. 
Dunlap, 112 Ind. 576, 577; City of Ft. Wayne v. Patterson, 3 App. 34, 37 ; City of La- 
fayette V. Ashby, 8 App. 214. 

Towns and cities, in the absence of contributory negligence, are liable for in- 
juries resulting from the fright of horses of ordinary gentleness at objects naturally cal- 
culated to frighten them, and which the corporation has negligently placed, or permit- 
ted to be placed, and to remain upon the street. Town of Rushville v. Adams, 107 Ind. 
475. 

Presumption concerning" obstructions.— The presumption is that an obstruction 
placed in a street is wrongfully placed and permitted to remain there. Senhenn v. 
City of Evansville, 140 Ind. 675. 

Temporary obstructions— Building* material. — Cities may permit a temporary ob- 
struction of a portion of streets when necessary in the erection of buildings. Woods v. 
Mears, 12 Ind. 515; Senhenn v. City of Evansville, 140 Ind. 675. 

A permit given by a city to obstruct a portion of a street temporarily, while a build- 
ing is being erected, may be revoked at any time. City of Indianapolis v. Miller, 27 
Ind. 394. 

If a city grants the right to temporarily obstruct a street, the city must see that due 
care is used, or the city may be liable for damages caused by such obstruction. City of 
Indianapolis v. Doherty, 71 Ind. 5. 

Permanent obstructions. — Cities have no authority to authorize the permanent 
obstruction of streets. Pettis v. Johnson, 56 Ind. 139; State v. Berdetta, 73 Ind. 185; 
Adams v. Ohio, etc., 131 Ind. 375; 2 Beach Conts., § 1190. 

Cities should prohibit the construction or continuance of anything overhanging a 
sidewalk that will render the use of such walk dangerous, such as the cornice of a build- 
ing which projects over a sidewalk and which is being constructed in such a manner as 
to be dangerous to persons using the sidewalk. Grove v. City of Fort AVayne, 45 Ind. 
429. 

Nuisance. — A municipal corporation is liable for torts the same as an individual, in 
certain classes of cases, among which is included nuisances. For a nuisance maintained 
upon its property the same liability attaches against a city as to an individual. City of 
New Albany v. Slider, Ind. App. Ct., Jan. 10, 1899; Haag v. Board, etc., 60 Ind. 511. 



135 GOVERNMENT AND POWERS. § 124 

Nineteenth. To regulate the time and place of bathing in rivers or 
public waters of said city. 

Twentieth. To restrain and punish vagrants, mendicants, street 
beggars, common prostitutes, and their associates. 

Yisiting" houses of ill fame.— No power is conferred by this clause upon the common 
council to impose a penalty upon any person for visiting or residing within a house of 
ill fame outside of the corporate limits of the city. Robb v. City of Indianapolis, 38 
Ind. 49. 

Twenty --fir St. To regulate and prohibit the running at large of cattle, 
horses, swine, fowls and other animals, and to provide for the im- 
pounding, keeping, sale and redemption of the same, when found in 
violation of the ordinances in such cases provided. 

Pound ordinance — Neglig-ence of city authorities. — A pound ordinance is a police 
regulation authorizing summary proceedings, and must be strictly adhered to. For 
any negligence of its agents in the construction of a pound, or in any purely ministerial 
duty under a pound ordinance, a city is liable, just as a private person would be for the 
acts of his agents. City of Greencastle v. Martin, 74 Ind. 449. 

It is not negligence in the owner of cattle to allow them to run at large in the streets 
of a town when an ordinance thereof permits it. Noblesville, etc., Co. v. Teter, 1 
App. 322. 

Impounding' animals— Pleading*.— A complaint against a city alleging, in substance, 
that the defendant so negligently and unskillfully constructed its pound fence that it 
was not high enough ; that the defendant, by its servants, negligently tied the plaintiff's 
mare to said fence with a rope long enough to enable her to jump over said fence, and 
that thereby, without plaintiff's fault, the mare was injured, to his damage, etc., showed 
a good cause of action. City of Greencastle v. Martin, 74 Ind. 449, 452. 

Conversion, when unsustained.— Where there was no proof of a wrongful appropri- 
ation, or of an attempt to make one, of an animal impounded by a city under an ordi- 
nance therefor, a finding against the city upon a complaint for conversion was not sus- 
tained by the evidence. City of Greencastle v. Martin, 74 Ind. 449, 450. 

Animals standing- loose in street— Ordinance. — Where a city ordinance declares, 
''that it shall be a nuisance and unlawful to suffer any animal, whether attached to any 
vehicle or not, to stand in any public way without being hitched," the manifest pur- 
pose of such ordinance was to prevent persons from leaving horses in a public way un- 
attended by the driver or person in charge without being hitched, and was not in- 
tended to apply when the animal was in the presence and under the control of the per- 
son in charge. Louisville, etc., R. Co. v. Davis, 7 App. 222. 

Twenty -second. To prevent the deposit of any unwholesome sub- 
stance within the city limits, and punish the person guilty of the 
same. And to remove or destroy putrid animal or vegetable matter, 
and the common council shall have the right to collect the expense of 
removing any such unwholesome substance, putrid, animal or vegeta- 
ble matter, from the person found guilty of a violation of the provis- 
ions of the ordinance of such city, in relation thereto, with ten per 
cent, damages thereon, and costs of suit therein. If the person occu- 
pying the premises, fail to' do so upon notice given, the common coun- 
cil shall have power to remove such putrid animal or vegetable mat- 
ter. 

Removal of g-arbag-e— Ordinance— Cost.— ruder the new Indianapolis charter the 



§ 124 CITIES. 136 

city may provide by contract for the removal of slops, garbage, etc., and fix the price 
for removal of the same, and require the charges to be paid by the persons from 
whose premises such removal is made. Walker v. Jameson, 140 Ind. 691. 

Cleaning" street — Garbage. — A city has exclusive power over streets within the cor- 
porate limits, and the cleaning of its streets when duly exercised can not be controlled 
by the courts. In such work, if unavoidable injury results no liability ensues, because 
the doing of what the law authorizes can not be a nuisance so as to give a right of 
action. But collecting garbage and filth from the streets and depositing the same in a 
mass upon some other street may create a nuisance, and if it does the city must be 
responsible in damages. City of New Albany v. Slider., Ind. App. Ct., Jan. 10, 1899. 

Nuisance — Street dnmp— Complaint.— A complaint which alleges that plaintiff is 
the owner, and with his family, is in possession of a house and lot in a city as a resi- 
dence ; that said city has caused to be deposited large quantities of garbage, rubbish 
and filth, gathered from its public ways, near to the premises of plaintiff, thereby creat- 
ing a nuisance consisting of a huge pile of decomposed and decaying vegetable and 
animal matter, from which noxious vapors, disagreeable and unhealthy odors are gen- 
erated and emitted, whereby the air in and about said premises of plaintiff is impregna- 
ted, injuring plaintiff's health and causing him and his family to become diseased and 
sick, destroying the comfortable enjoyment of said premises and greatly depreciating 
the value thereof to plaintiff's damage, presents a good cause of action for damages 
against the city. City of New Albany v. Slider, Ind. App. Ct., Jan. 10, 1899; City of 
New Albany v. Armstrong, Ind. App. Ct., March 8, 1899. 

In such case, where the jury finds, in answer to interrogatories, and the undisputed 
evidence is, that there is no permanent injury to the property resulting from the nui- 
sance, but that during the continuance of the nuisance the rental value of the property 
was depreciated, but there is neither finding nor evidence as to amount of the rental 
value, a verdict in favor of the plaintiff can not be upheld. City of New Albany v. 
Armstrong, Ind. App. Ct., March 8, 1899. 

Chickens— Keeping" — Feeding'. — An ordinance making it unlawful to keep in any 
lot or enclosure within the corporate limits for the purpose of slaughtering or feeding 
for marketing or slaughtering, any cattle, hogs, sheep or other animals; or any geese, 
chickens, ducks, turkeys or other fowls exceeding fifty (50) in number, is not violated, 
by a person keeping 500 chickens in a warehouse in the city from Saturday until Mon- 
day awaiting shipment. Long v. City of Portland, 151 Ind. 442. 

Twenty-third. To regulate the ringing of bells, crying of goods, and 
to restrain hawking and peddling. 

Hawking" and peddling" — License. — The power to restrain carries with it the power 
to license. The city has power by ordinance to require a license for hawking and 
peddling in the city. City of South Bend v. Martin, 142 Ind. 31, 36; City of Hunting- 
ton V. Cheesbro, 57 Ind. 74; Smith v. City of Madison, 7 Ind. 86. 

Definition of hawking" and peddling.— Any method of selling goods by outcry on 
the streets or public places in the city, or by attracting persons to purchase goods ex- 
posed for sale at such places by placards or signals, or by going from house to house, 
selling or offering goods for sale at retail to individuals not dealers in such commodities, 
whether they be carried along for present delivery, or the sales be made for future 
delivery, constitutes the person so selling a hawker or peddler within the meaning of 
the statute. Graffty v. City of Rushville, 107 Ind. 502; City of South Bend v. Martin, 
142 Ind. 31. 

Hawkers and peddlers. — A cit>^ has power to pass an ordinance requiring a license 
to hawk and peddle therein. One engaged in selhng chairs within a city by going per- 
sonally from house to house, selling the chairs and delivering them at the time of the 



137 GOVERNMENT AND POWERS. § 124 

sale, is a peddler within an ordinance requiring peddlers to obtain a license. City of 
South Bend v. Martin, 142 Ind. 31. 

Interstate commerce— Validity of ordinance.— An ordinance which prohibits any 
traveling merchant or peddler from selling, or offering to sell, any merchandise without 
having obtained a license, can not be enforced against one who makes negotiations for 
the sale of property situated and owned in another state. An ordinance requiring a 
license fee from agents representing citizens of another state, who offer goods not in 
this state for sale by sample, is void, because it assumes to establish a regulation affect- 
ing commerce between the states. McLaughlin v. City of South Bend, 126 Ind. 471 ; 
Martin v. Town of Rosedale, 130 Ind. 109; City of South Bend v. Martin, 142 Ind. 31 ; 
McCall V. California, 136 U.S. 104; Stoutenburgh v. Hennick, 129 U. S. 141; City of 
Huntington v. Mahan, 142 Ind. 695. 

Distributing" agent. — A city ordinance prohibiting peddling without a license is an 
unlawful interference with interstate commerce as to a salaried distributing agent of a 
publishing firm in another state, where orders for books in several localities are sent to 
such firm by another salaried agent, and on being received by the latter are repacked 
and shipped to various localities for distribution. City of Huntington v. Mahan, 142 
Ind. 695. 

An ordinance of a town requiring all traveling peddlers of goods to take out a license 
is not void on the assumption that it applies only to non-residents of such town for it 
equally applies to citizens thereof. But it is void as to residents of other states who 
are engaged in selling goods located in other states, even though the sale is only by 
sample, on the ground that it is an interference with interstate commerce. Martin v. 
Town of Eosedale, 130 Ind. 109. 

An ordinance imposing a license on hawkers and peddlers does not interfere with in- 
terstate commerce in the case of a peddler of chairs imported into the state before his 
employment begins, even though the sale by him is conditional and the title remains in 
the foreign owner. City of South Bend v. Martin, 142 Ind. 31. 

Discrimination ag'ainst citizens and products of other communities. — A city ordi- 
nance, requiring a hawker and peddler, who is not a resident of the city, and who pro- 
poses to sell goods, wares or merchandise which are not grown or manufactured in the 
county in which the city is located, to procure a license and pay the fee therefor before 
he may lawfully follow his calling in such city, discriminates against the citizens and 
products of other communities and is unconstitutional and void. Graffty v. City of 
Rushville, 107 Ind. 502. 

Under this clause any mode of selling goods which does not fall within the terms "to 
restrain hawking and peddling," can not be made unlawful by ordinance. Graffty v. 
City of Rushville, 107 Ind. 502. 

Twenty -fourth. To remove or confine persons having infectious or 
pestilential diseases. 

Neg'lig'ence — Liability. — The city is not liable for the negligence of persons placed in 
charge of a small-pox hospital which the city has established. Ogg v. City of Lansing, 
35 Iowa 495 ; Summers v. Board, etc., 103 Ind. 262. 

Twenty '-fifth. To regulate the keeping of bills of mortality and to 
provide penalties for the neglect of any person in violation of the 
same. 

Twenty-sixth. To construct and establish works for furnishing the 
city with wholesome water; and for the purpose of drainage of such 
city, may go beyond the city limits, and condemn lands and material, 



§ 124 CITIES. 138 

and exercise full jurisdiction and all the necessary power therefor. 
The common council may authorize any incorporated company or 
association to construct such works; and in such case, the city may 
become part stockholder in any such company or association. 

See clause 43, and post, §§138, 1061-1089. 

Corporate powers— Contract for construction of water-works. — This clause was 
not repealed either in terms or by implication by the act of March 25, 1879 (E. S. 1894, 
§ 4250), to authorize cities and incorporated towns to construct, maintain and operate 
water- works, etc. ( post, § 1061, et seq.). A contract of the city with a water company for 
the construction and maintenance of water-works is not ultra vires and void, and the 
city may become a stockholder in the company. City of Vincennes v. Callender, 86 
Ind. 484; City of Valparaiso v. Gardner, 97 Ind. 1. 

Supply— Creation of debt— Discretionary power.— While the power of a city to 
contract for a supply of water for pubhc use is, in a general sense, a discretionary one, 
it can not be so exercised as to create a corporate debt beyond that limited by law, nor 
to surrender or suspend legislative power. City of Valparaiso v. Gardner, 97 Ind. 1 ; 
Town of Winamac v. Huddleston, 132 Ind. 217, 

Indebtedness— Constitutional limit — Current revenue. — The constitutional limita- 
tion upon the indebtedness of any political or municipal corporation does not apply to 
water to be paid for as the water is furnished, provided the contract price can be paid 
from the current revenues as the water is furnished, without increasing the corporate 
indebtedness beyond the constitutional limit, or encroaching upon funds for other pur- 
poses. 

The items of expense essential to the maintenance of corporate existence, such as 
light, water, labor and the like, constitute current expenses, payable out of current 
revenues, and where these are sufficient to discharge all current expenses without in- 
creasing the indebtedness, there is no corporate debt incurred for such expenses. 
City of A^alparaiso v. Gardner, 97 Ind. 1 ; Quill v. City of Indianapohs, 124 Ind. 292, 
300; Crowder v. Town of Sullivan, 128 Ind. 486. 

Where a municipal corporation contracts for a usual and necessary thing, such as 
water or light, and agrees to pay for it annually as furnished, the contract does not 
create an indebtedness for the aggregate sum of all the yearly installments, since the 
debt for each year does not come into existence until the compensation for each year 
has been earned. Crowder v. Town of Sullivan, 128 Ind. 486; City of New Albany v. 
McCulloch, 127 Ind. 500. 

Exclusive privileg'es to one corporation— Can not be g'ranted, — A municipal cor- 
poration can not grant to a private corporation the exclusive privilege of using ic5 streets 
for the purpose of supplying the corporation, or its citizens, with light, water, fuel or 
the like. Crowder v. Town of Sullivan, 128 Ind. 486; Indianapolis, etc., R. Co. v. Citi- 
zens', etc., Co., 127 Ind. 369; Citizens', etc., Co. v. Town of Elwood, 114 Ind. 332; 
1 Beach Pub. Corp., §§ 553, 554. 

. Water- works stock — Sale. — A city incorporated under the general law of this state 
has the right to sell stock subscribed by it in a water- works company, and as an in- 
cident to decide upon the terms of sale. City of Terre Haute v, Terre Haute Water- 
Works Co., 94 Ind. 305. 

Contract for construction— Independent contractor— Liability,— Wliere a city is 
engaged in the construction of a system of water-works for municipal purposes, and 
has entered into a contract with another person for the performance of the work, by 
the terms of which the exclusive control of such work rests in the contractor, such city, 
notwithstanding the contract, stands charged by law with a duty in the care and con- 
trol of its streets, in and through which its water- works are in process of construc- 
tion, to keep such streets in a safe condition for use in the usual manner ; for a breach 



139 GOYEENMENT AND POWERS. § 124 

of such duty, resulting in injury or death to a third person, it is hable in damages. 
City of Logansport v. Dick, 70 Ind. 65. 

Xot a nuisauce per se — Negiig'ence. — The construction of water-works by a city is 
not a nuisance per se, and neither such city nor its contractor can be held liable in dam-' 
ages for any injury resulting therefrom, unless it can be shown that such injury was 
caused by some act of neghgence of the contractor or his servants, or some breach of 
duty by the city, and that there had been no contributory negligence on the part of the 
injured. City of Logansport v. Dick, 70 Ind. 65. 

Water-course — Injimction — Mills — Estoppel.— Where the owner of water power 
stands by, and, not objecting, permits a city, without first assessing and paying his 
damages, to erect works for a water supply by drawing water from the stream and thus 
diminishing his power, he creates an equitable estoppel, so that he will not be protected 
by injunction, but will be left to assert his rights at law. City of Logansport v. L"hl, 99 
Ind. 531. 

Water- works bonds— Statute construed.— The above clause of the general act for 
the incorporation of cities gives to the common councils of cities no authority to issue, 
negotiate and sell bonds for the purpose of obtaining money to construct water- works. 
State V. Hauser, 63 Ind. 155. See Daily v. City of Columbus, 49 Ind. 169. 

The act of 1871, legalizing bonds issued for the construction of water-works applies to 
all cities in the state. State v. Hauser, 63 Ind. 155. 

Superintendent of water-works— Bond— Liability of surety,— In 1876 the council 
of the city of Lafayette elected a "superintendent" of water-works, there being no law 
or ordinance specifying his duties or requiring him to give any bond, but he gave bond, 
with sureties conditioned for the proper discharge of the duties of superintendent and 
the payment of all moneys that might come to his hands as such. Subsequently an 
ordinance was passed providing for the appointment of such superintendent, and 
defining his duties, one of which was the collection of water rents. He collected such 
rents and became a defaulter as to a large amount thereof. The sureties were not liable 
for the defalcation. City of Lafayette v. James, 92 Ind. 240. 

Contract with water company— Ordinance— No privity of contract by citizens.— 
Where a city enters into a contract with a water company for supplying the city with 
water and for protection against fii'e, there is no privity of contract between a citizen 
and tax-payer of the city and the water company. The violation of such contract and 
ordinance by the water company, resulting in a loss by fire to the citizen by reason of 
the insufiicient water pressure, where sufficient pressure might have been supplied and 
loss avoided, creates no liability in favor of the citizen against either the city or the 
water company. Fitch v. Seymour Water Co., 139 Ind. 214. 

Drainag'e — Contract. — A municipal corporation can not make a contract to furnish 
drainage for the lands of a private person. Such a contract being a limitation upon the 
governmental functions is absolutely void. Hamilton v. City of Shelbyville, 6 App. 538. 

Twenty 'severdh. To establish and regulate pounds. 

Impounding" animals.— Ordinances providing for the impounding of animals running 
at large in the streets, and providing for the sale of the same, have usually been held 
valid both as to resident and non-resident owners, when express power has been 
granted to the municipality to impound, etc., but such power must be strictly pursued. 
1 Dillon Munic. Coip., 4th ed., §§ 150, 348, 351 ; 2 Beach Pub. Corp., § 1242. ' 

Twenty -eighth. To construct and establish gas-works, or to regulate 
the establishment thereof by individuals or companies, or to regulate 
the lighting of streets, public orounds, and buildings, and to provide 
by ordinance, what part, if any, of the expense of lighting anv street 
or alley, shall be paid by the owners of lots fronting thereon, and in 



§ 124 CITIES. 140 

what manner the same shall be assessed or collected, and to make the 
same a lien upon real estate. 

See post, § 1130, et seq. 

Expense of lig'hting'. — The expense of lighting streets, referred to in this clause, re- 
lates only to the expense of Hghting after the fixtures for hghting have been put up. 
Nelson v. City of La Porte, 33 Ind. 258. 

Exclusive privileg'es to one corporation. — A municipal corporation can not grant to 
a private corporation the exclusive privilege of using its streets for the purpose of sup- 
plying the corporation or its citizens with light, water, fuel or the like. Crowder v. 
Town of Sullivan, 128 Ind. 486; Indianapolis, etc., R. Co. v. Citizens', etc., Co., 127 
Ind. 369; Citizens', etc., Co. v. Town of Elwood, 114 Ind. 332; City of Rushville v. 
Rushville Nat. Gas Co., 132 Ind. 575, 578; Elhott Roads and Streets, pp. 331, 332. 

Contract for lig'hting" — G-as. — A city has power under this clause to contract with a 
gas company for hght, and may exercise such power, within the limits of its franchise, 
according to its own discretion, and such contract, when made, must be regarded as made 
by such city in the exercise of its power to contract, and not in the exercise of its power to 
legislate, although the power to make the contract may be authorized by an ordinance. 
City of Indianapolis v. Indianapolis, etc., Co., 66 Ind. 396. 

When by the terms of a contract between a city and a gas company, for lighting the 
streets, the city is not restricted in any respect from the legitimate exercise of its public 
power touching the subject-matter thereof, but expressly reserves its administrative au- 
thority to keep the posts, lamps and burners in good repair if the company shall fail to 
do so ; and also reserves the right to test the quality of gas furnished by such company, 
and the capacity of the burners at all times ; and is not restricted from extending its 
streets, establishing an additional number of lamps, obtaining gas from other sources, 
or establishing its own gas works, as the public interest may require, such contract, not 
being a restriction of its legislative power, nor fraudulent, nor against public policy, is 
valid and binding upon such city, and can not be repealed, impaired or changed by the 
city, by ordinance or otherwise. City of Indianapolis v. Indianapolis, etc., Co., 66 Ind. 
396; City of Vincennes v. Citizens' Gas Light Co., 132 Ind. 114. 

Period of contract. — A city has the power to contract for a supply of gas or water 
for a period extending beyond the tenure of office of the individual members of the 
common council making such contract. Twenty-five years is not an unreasonable time for 
which to contract for a supply of light or water, in the absence of express prohibitions 
in the statute. City of Vincennes v. Citizens' Gas Light Co., 132 Ind, 114; City of 
Valparaiso v. Gardner, 97 Ind. 1; 2 Beach Conts., §§ 1148, 1195. 

Where a contract between a city and a gas company for lighting the city streets for 
a term of years provides that, if, at any time, the city shall determine that electric 
lights shall be substituted for gas lights, the company shall make the substitution, the 
price at which such electric lights shall be furnished to be fixed hj an equitable agree- 
ment between the city and company, the contract is not sufficiently certain to be 
specifically enforced. In such case, if the city determines to substitute electric light- 
ing, prior to the expiration of the contract, injunction will not lie at the suit of the gas 
company, to restrain the city from proceeding to secure such lighting by competitive 
bids. The Gas Light, et<;., Co. v. City of New Albany, 139 Ind. 660. 

Lig'hting' streets — Implied power. — ^The power to light the streets and public places 
of a municipality is one of its implied and inherent powers, necessary to properly pro- 
tect the lives and property of its inhabitants, and as a check on immorality. No statute 
is necessary to give it this power. City of Crawfordsville v. Braden, 130 Ind. 149. 

The power to light carries with it incidentally the further power to procure or furnish 
whatever is necessary for the production and dissemination of the light. City of Craw- 
fordsville V. Braden, 130 Ind. 149. 

Discretion— Not controlled by courts.— The discretion of municipal corporations 



141 GOVERNMENT AND POWERS. § 124 

within the sphere of their powers respecting the lighting of the streets and pubhc 
places, is not subject to judicial control, except in case of fraud or where the discretion 
has been grossly abused to the oppression of the inhabitants. City of Crawfordsville v. 
Braden, 130 Ind. 149; 2 Beach Coots., § 1196. 

City may own works— Private consumers.— A city has the power to establish works 
for lighting its streets, and may, in connection therewith, furnish private consumers 
such hght by contract. It may contract for lighting the streets, or buy and operate 
plants and machinery for such purpose. City of Crawfordsville v. Braden, 130 Ind. 
149; Rushville Gas Co. v. City of Rushville, 121 Ind. 206; 2 Beach Conts., § 1199. 

This clause granting general power as to lighting of streets and public grounds is con- 
strued with act of March 3, 1883 {post, §§ 1136-1140). Said act did not affect existing 
contracts. Eushville Gas Co. v. City of Rushville, 121 Ind. 206; City of Crawfordsville 
V. Braden, 130 Ind. 149, 152. 

Electric light companies occupying* streets— Duties and liabilities of company 
and city. — Where a corporation has been authorized by the city to erect and maintain 
poles, wires, lamps and cables in the streets for electric lights, it is the duty of such 
corporation to keep watch over these appliances, and the city is liable only in cases 
wherein, after actual or constructive notice of the existence of danger growing out of 
or caused by some defect in the poles, wires or other appliances, it fails to use diligence 
in obviating the danger thus created ; the corporation occupying the streets for such 
purpose is not an insurer of the safety of the public against all dangers arising from 
the lawful placing in the streets of such appliances, but it is bound to know the dangers 
which may naturally be caused by such use of the streets, and to guard against the 
same by the exercise ©f all the foresight and caution which can be reasonably expected 
of prudent men under such circumstances. City of Denver v. Sherret, 88 Fed. Rep. 226. 

Notice of defect. — If an employe of an electric light company occupying the streets, 
whose duty it is to report defects to the company, while in the line of his employment 
discover defects, such discovery is notice to the company. City of Denver v. Sherret, 
88 Fed. Rep. 226. 

Twenty -ninth. To regulate the management of all public property, 
markets, and market spaces, and sales of fresh meats, fish and vege- 
tables; to prevent, by ordinance, the offense of regrating and forestall- 
ing; to appoint market masters and invest them with powers to make 
arrests for the violation of city ordinances in their view; and to make 
councilmen and all other city officers conservators of the peace within 
such city, with power to arrest in like manner. 

Improvement of market place — Injunction, — The city council has no jurisdiction to 
improve the property of the city, held and used for market purposes, at the expense of 
owners of adjoining lots, and injunction will lie to prevent it from doing so. City of Ft. 
Wayne v. Shoaff, 106 Ind. 66. 

The city can not authorize the occupancy of a street for a market. The abutting lot 
owner may enjoin such use. City of Richmond v. Smith, 148 Ind. 294; 1 Dillon Munic. 
Corp., 4th ed., § 383 : 2 Dillon Munic. Corp. § 660n. 

Reg"ulation and control. — The power to estabhsh, regulate and control pubhc mar- 
kets is a part of the police power, which may be delegated by the state to municipal 
corporations. The extent of the power possessed by a particular corporation depends 
upon its charter. 1 Dillon Munic. Corp., §380, et. seq.; 1 Beach Munic. Corp., '^b^iS, 
et seq.; Natal v. State, 139 XJ, S. 621. 

Thirtieth. To regulate and protect fire engines, hose, hook and 
ladders. 



§ 124 CITIES. 142 

Thirty-first. To regulate the selling, weighing and measuring of 
hay, wood, coal and other articles: 

This clause confers no power upon a city to authorize the obstruction of a street by 
the estabhshment of scales thereon. City of Tell City v. Bielefeld, 20 App. 1. 

Thirty-second. To organize a board of public improvements and em- 
power such board to grant permits to build houses or additions thereto; 
to prevent the erection of wooden buildings in such parts of the city 
as the common council may determine; to condemn any building or 
structure liable to fall and endanger life or property, and provide for 
the removal and taking down of the same; to take from all persons to 
whom such permit is granted, or with whom the city shall contract 
for any improvement, liable to endanger person or property, a bond 
with sufficient sureties, conditioned that the owner or contractor shall 
pay all damages that may be sustained by any person or persons by 
reason of any carelessness or negligence in the manner of making 
such improvements, and property, from injuries thereby. 

See clause 18 and note, and j^ost, §§ 211 and 256, et seq., and notes. 

Fire limits and ordinances. — Cities in this state possess ample power to enact and 
enforce reasonable ordinances to secure protection against fire. In the absence of ex- 
press statutory authority, the enactment and enforcement of reasonable regulations of 
this character are recognized as a legitimate exercise of the police power necessary to 
the safety of the city. In addition to the power thus possessed, the statutes of this 
state confer express authority upon cities to establish fire limits, and prevent the erec- 
tion of w^ooden buildings in such parts of the city as the common council may deter- 
mine. The statutory power thus conferred is not a limitation upon the common law 
power of the city in this particular. Clark v. City of South Bend, 85 Ind. 276, 277; 
Baumgartner v. Hasty, 100 Ind. 575, 580 ; Hasty v. City of Huntington, 105 Ind. 540, 542 ; 
Corporation of Bluffton v. Studabaker, 106 Ind. 129, 133 ; First Nat. Bank v. Sarlls, 129 
Ind. 201, 206; City of Rushville v. Rushville, etc., Co., 132 Ind. 575, 581; Kaufman v 
Stein, 138 Ind. 49; 1 Beach Pub. Corp., §§ 578, 579; 1 Dillon Munic Corp., §§ 143, 405 

Dang'erous walls— Liability of city. — A municipal corporation is not liable to a citi- 
zen, whose building stands on a public alley, for damages sustained by him by reason 
of the walls of a building, standing on the opposite side of the alley, belonging to an- 
other citizen, and negligently permitted by him to become dangerous, falling upon his 
building and destroying it. City of Anderson v. East, 117 Ind. 126, 128. 

Building' — Duty to keep safe. — The owner of a building in a populous city does not 
owe it as a duty at common law, independent of any statute or ordinance, to keep such 
building safe for firemen or other oflicers who, in a contingency, may enter the same 
under a license conferred by law ; but such duty may be imposed either by statute or by 
ordinance. Woodruff v. Bowen, 136 Ind. 431, 443. 

Dang'erous building's and structures. — Where a city ordinance declares that ''It 
shall be unlawful for any person to construct, erect or maintain any unsafe, insecure 
and dangerous w^all, building, or structure within the limits of this city, and it shall be 
the duty of all persons owning premises upon which there is any dangerous, unsafe and 
insecure wall or building to make the same safe and secure, either by properly repair- 
ing the same or by rebuilding the same Avithin twelve hours after receiving notice from 
the chief fire engineer," etc., and declaiing what walls, buildings, and structures shall 
be deemed unsafe, such ordinance has reference to walls and buildings in immediate 
danger of falling or in immediate danger of taking fire, and the evident purpose of the 
ordinance vras to protect the city against fire, and to protect the citizens and those 



143 GOVERNMENT AND POWERS. § 124 

whose business required them to be in the vicinity of such walls and buildings, and 
could not have been intended for the safety of firemen, if, in response to their duty, 
they are called to such building or structure, to extinguish a conflagration. Woodruff 
V. Bowen, 136 Ind. 431, 444. 

Owner's liability for personal injury.— Where, in the absence of any statutory re- 
quirements, but under the ordinance as above set out, a person has erected a building 
which, under ordinary circumstances, was reasonably safe for the purposes of commerce 
and trade, and it becomes unsafe only by reason of the fact that it was stored with a 
large quantity of goods, by a tenant, and by reason of the additional fact that in an ex- 
traordinary emergency by fire, large quantities of water were thrown into and upon the 
building and goods, thereby causing it to collapse, whereby firemen in the discharge of 
their duty were killed, the owner of such building is not responsible in damages for the 
death of the firemen who were on the premises under a license conferred by law only. 
Woodmff V. Bowen, 136 Ind. 431, 445. 

Removal of wooden building's — Injunction. — A property owner may maintain a suit 
to enjoin the removal of a wooden building to a place within the fire limits, in violation 
of a city ordinance forbidding it, where it is to be located dangerously near the plaint- 
iff's frame house. Kaufman v. Stein, 138 Ind. 49. 

When fire limits are established, it is presumed that it is with reference to the exist- 
ing location of buildings within such limits, and the subsequent removal of a wooden 
building to a point twenty-five feet distant upon the same lot is within the inhibition. 
Kaufman v. Stein, 138 Ind. 49. 

Building" permits. — The common council has power to enact an ordinance making it 
unlawful to erect a building within the city without first making application to the clerk 
of the board of public improvements. Hasty v. City of Huntington, 105 Ind. 540. 

Cities may permit a temporary obstruction of a portion of streets when necessary in 
the erection of buildings. Such permit may be revoked at any time. Wood v. Mears, 
12 Ind. 515; Senhenn v. City of Evansville, 140 Ind. 675 ; City of Indianapolis v. Miller, 
27 Ind. 394. 

Repairs of building*. — If the owner of a building proposes to make repairs or additions 
to it of such material or in such manner as to clearly menace the public safety or to 
greatly endanger adjacent property, the city authorities have ample power to interfere 
and prevent the making of such repairs or addition. First National Bank, etc., v. Sarlls, 
129 Ind. 201. 

Deprivation of power to make repairs — Invalidity of ordinance.— A municipal or- 
dinance is invalid which arbitrarily attempts to take from the owner of a frame or 
wooden building all power to make repairs necessary for its preservation or necessary 
for its enjoyment, regardless of the effect which such repairs may have upon the public, 
upon adjacent property, or upon the rights of others. First National Bank, etc., v. 
Sarlls, 129 Ind. 201. 

A building permit, which requires the party to whom it is issued to protect the public 
from the dangers of the obstructions authorized by the permit, does not relieve the city 
of the duty of exercising such reasonable diligence as the circumstances require, to pre' 
vent the street from being occupied in such way as to endanger passers-by in their use 
of it in all proper ways. Cleveland v. King, 132 XJ. S. 295. 

A city is not liable for the acts of persons it licenses to use its streets, unless the thing 
authorized is intrinsically dangerous, or the municipal authorities have notice of the 
negligence of its licensees. City of Warsaw v. Dunlap, 112 Ind. 576. 

Erection of building*— Injunction.— Where it is shown that the erection of a build- 
ing, if permitted, will be in express violation of a valid municipal ordinance, although 
it would not be a nuisance per se, an individual who shows such fact, and shows in 
addition that its erection will work special and irreparable injury to him and his prop- 
erty, is entitled to relief by injunction. First National Bank, etc., v. Sarlls, 129 Ind. 201. 



§ 124 CITIES. 144 

Buildings erected in violation of a valid ordinance may be removed ; not necessarily 
because the buildings thus erected are a nuisance, but because the erection was in vio- 
lation and defiance of the law. First National Bank, etc., v. Sarlls, 129 Ind. 210. 

The erection within the ''fire limits" of a city of a building from a forbidden material 
is per se a nuisance, which may be abated by the city without notice to the owner; and 
where such building is erected after the fire limits have been established, the city may 
destroy it without incurring any liability. Miller v. City of Valparaiso, 10 App. 22. 

The ordinance of a city establishing "fire limits" is the best evidence of what such 
limits are. Miller v. City of Valparaiso, 10 App. 22. 

jS^uisance — Abatement of. — The legislature has power to invest municipal corpora- 
tions with authority to abate public nuisances without resorting to judicial proceedings. 
Baumgartner v. Hasty, 100 Ind. 575, 583. 

A municipal corporation has no power to forfeit the property of a citizen, but the 
abatement of a public nuisance by the tearing down of a w^ooden building, which con- 
stitutes a nuisance, is not a forfeiture of property. Baumgartner v. Hasty, 100 Ind. 
575, 584. 

A wooden building is not in itself a nuisance, but it may become so when it endan- 
gers surrounding buildings, and a municipal corporation may enact an ordinance pro- 
viding for the summary removal of such a building. Baumgartner v. Hasty, 100 Ind. 
575, 576. 

Cities are not liable for property destroyed by fire because they do not exercise the 
powers conferred by law in regard to providing protection from fire ; nor are they liable 
for the negligence of the fire department. Brinkmeyer v. City of Evansville, 29 Ind. 
187 ; Eobinson v. City of Evansville, 87 Ind. 334 ; City of Lafayette v. Timberlake, 88 
Ind. 330; Faulkner v. City of Aurora, 85 Ind. 130; Kistner v. City of Indianapolis, 100 
Ind. 210; City of Anderson v. East, 117 Ind. 126. 

Thirty -third. To erect and establish, market houses and market 
places, engine houses, houses of refuge, pest houses and hospitals. 

Hospitals. — The word "hospitals" used in this clause means public hospitals. A 
hospital is not prima facie or per se a nuisance. Neither this nor the general welfare 
clause authorizes common councils of cities to enact ordinances to license and regulate 
the establishment of private hospitals within the city limits. Bessonies v. City of In- 
dianapolis, 71 Ind. 189; Barnard v. Sherley, 135 Ind. 547, 567. 

Markets. — The statute contemplates the use by the city of its own lands for the loca- 
tion of public markets. It can not establish public markets in the streets, against the 
protest of abutting property owners. City of Eichmond v. Smith, 148 Ind. 294. 

Thirty -fourth. To establish and construct wharves, docks, piers and 
basins; and to regulate landing places, and fix the rates of landing, 
wharfage, and dockage on all public grounds belonging to said city. 
All claims for landing, wharfage and dockage accruing to said city 
shall be a lien upon the boat, vessel or water-craft contracting the 
same, and after a demand by the wharf master upon the owner or 
master, clerk of consignee thereof, and refusal of payment, may be 
enforced by attachment before the mayor of said city where the 
amount does not exceed one hundred dollars, in the same manner and 
to the same extent that liens on boats and other water-craft are now 
enforced under the general laws of this state, and all proceedings shall 
be conformable thereto as far as practicable, and the common council shall 
have power to compel property owners owning any lots or parts of 



145 GOVERNMENT AND POWERS. § 124 

lots or lands bordering on any navigable stream, basin or harbor, made 
so by nature or artificial means, to build and construct sea walls for the 
protection of the banks thereof in such manner as the common coun- 
cil by ordinance shall prescribe, provided such navigable water harbor 
or basin shall have been improved and used therefor. And for landing 
further up or beyond, and if it be deemed necessary to protect the 
banks of said stream, harbor or basin, along any such lot or parts of 
lots by sea walls or otherwise, and upon the failure of such property 
owners, to make such sea walls as shall be prescribed by such com- 
mon council, the common council are hereby empowered to cause such 
sea walls to be built by contract let to the lowest bidder; and the cost 
of constructing the same shall be a lien upon the property bordering 
upon such harbors, navigable streams or basins, or deemed benefited 
by such improvements, and the lien of the city shall be enforced in 
the same manner as provided now by law for the enforcement of liens 
for the improvements of streets and sidewalks; provided, t'hat thirty 
days' notice of the improvement to be made and the manner thereof 
shall be given to resident property owners by notice served by the city 
marshal, and by publishing in the corporation newspapers, four 
weeks to non-resident property owners; provided, that the owners of 
property affected shall have the same remedies by injunction and 
appeal that is now given by section 71, paragraph 3165 (R. S. 1894, 
§ 3628), and provided further, that four weeks notice by publication in 
the corporation newspaper shall be given by the common council of 
their intention to pass such ordinance. 

Water-craft — Wharf ag'e. — Where the common cpuncil of a city passes an ordinance 
fixing the rate of wharfage to be paid by boats, etc., it is not necessary to the enforce- 
ment of a hen against a boat for dehnquent wharfage that the ordinance should provide 
for such enforcement. When such dehnquency occurs, the city may proceed under the 
provisions of R. S. 1894, § 7239, which fixes the Hen, and have a judgment in rem against 
the boat for the amount due. Coal Float v. City of Jeffersonville, 112 Ind. 15, 18. 

Rig'lit of eit.y to eoiistniet — Wharfag^e. — Cities have power to construct wharves and 
collect wharfage. City of Jeffersonville v. Steam Ferry Boat, etc., 35 Ind. 19; City of 
Jeffersonville v. Louisville, etc., Ferry Co., 27 Ind. 100; 1 Dillon Munic. Coi-p., §§ 27, 
103; 1 Beach Pub. Corp., §§ 564, 565. 

Repairs. — The city can be compelled to repair a wharf and is liable for damages oc- 
casioned by the neglect to repair ; but if one avails himself of the use of the wharf, 
although out of repair, he is still liable for wharfage ; and the voluntary expenditure of 
money by a stranger in repairing a wharf of a city will not create a liability against the 
city. City of Jeffersonville v. Steam Ferry Boat, etc., 35 Ind. 19; City of Jeffersonville 
v. Louisville, etc.. Ferry Co., 27 Ind. 100. 

A city has no right to charge wharfage against one who is the owner of a ferry right, 
when the claim arises out of the exercise of the right of ferriage. City of Jeffersonville 
V. Louis vihe, etc.. Ferry Co., 27 Ind. 100. 

Jurisdiction.— A claim for wharfage against a domestic vessel is not of admiralty 
jurisdiction, and the state courts have jurisdiction to enforce such claim. City of Jeffer- 
sonville V. Steam Ferry Boat, etc., 35 Ind. 19. 

The right to erect a wharf has its foundation either in the ownership of the soil or the 
right of eminent domain. When a wharf is built by individuals it is private property ; 

CiT. AND To.— 10 



§ 124 CITIES. 146 

when built by a city, under the general law, it is under the jurisdiction and control of 
the city authorities. City of Jeffersonville v. Louisville, etc., Ferry Co., 27 Ind. 100. 

A city incorporated under a charter authorizing the common council "to regulate all 
wharfage on the shore of the Ohio river adjoining said city," can not by ordinance de- 
fine the line of high water mark and declare the erection of buildings below said line a 
nuisance and impose a fine upon persons erecting such buildings on their own land. 
City of Evansville v. Martin, 41 Ind. 145. 

Under the general act for the incorporation of cities of 1857, the common council 
could not require the owner of a ferry within the city limits to take out a license. 
Shallcroas v. City of Jeffersonville, 26 Ind. 193 ; Duckwall v. City of New Albany, 25 
Ind. 283. 

Same — Evansville — Wharf . — The city of Evansville, under her former special 
charter, had the power, as a police regulation, to establish water lines and to make 
reasonable provisions for the protection of navigation, and for this purpose could pro- 
hibit the erection of buildings below high water mark which would have a tendency to 
obstruct navigation ; but this power did not extend to private wharves above high water 
marks. Martin v. City of Evansville, 32 Ind. 85. 

Riparian owner — Navig'able waters. — For law authorizing riparian owners to build, 
maintain and occupy piers, wharves, docks and harbors, upon navigable waters, see 
Acts 1899, p. 133. 

Riparian owner — Ohio river — Title. — The title of the riparian owner on the Ohio 
river extends to low water mark, subject only to the easement in the public of the right 
of navigation. Martin v. City of Evansville, 32 Ind. 85; Sherlock v. Bainbridge, 41 
Ind. 35. 

The Ohio river being a ''common highway," the owner of the soil along its banks, 
although his title may extend to low water mark, can not so construct his wharf as to 
materially interfere with the navigation of the river. His title to the soil of the shore, 
or under the water, does not authorize him to obstruct, in any way, the free use of the 
river by the public as a highway. Sherlock v. Bainbridge, 41 Ind. 35. 

Riparian owner— Non-navig-able waters—Title.— The title of riparian proprietors 
on non-navigable streams and lakes extends to the thread of the stream. Ross v. 
Faust, 54 Ind. 471 ; Ridgway v. Ludlow, 58 Ind. 248. 

Wrong'lul use of wharf — Injunction. — Where a corporation for purely private pur- 
poses has entered upon a strip of land used for wharf purposes, and has begun the con- 
struction of a log-way and raised platform thereon, and threatens to use a steam engine 
in the prosecution of its businsss on said wharf, one who lives in the immediate vicinity 
of the wharf may enjoin such a use of the wharf, his complaint showing injury to the 
use and enjoyment of his dwelling-house therefrom, and consequent depreciation in its 
value, and the interference of its comfortable enjoyment by dust, smoke and offensive 
odors. The common council of a city can not authorize such an obstruction of the 
wharf. Adams v. Ohio Falls, etc., Co., 131 Ind. 375, 378. 

Rig'ht in common with public. — The plaintiff in such a case has no right of action on 
account of the deprivation of the right which he in common with the general public has 
to use and drive over that part of the wharf occupied by the obstruction. Adams v. 
Ohio Falls, etc., Co., 131 Ind. 375, 379. 

Comfortable enjoyment of dwelling.— It is not necessary to a right of action by the 
plaintiff that his dwelhng-house will be injured by the proposed use of the wharf, but 
if its comfortable enjoyment will be essentially interfered with by dust, smoke and 
offensive odors, relief by injunction will be awarded. Adams v. Ohio Falls, etc., Co., 
131 Ind. 375, 380. 

Thirty-fifth. To establish a board of health, and to invest it with the 
power necessry to attain its object. 
See post, §§1153, 1154. 



147 GOVERNMENT AND POWERS. § 124 

For general law creating state and local boards of health, see K. S. 1894, §§ 6711, et 
seq.; Burns' Supp. 1897, § 6416. 

Scope of power— Health and quarantine.— As to the scope of power which maybe 
delegated to municipal corporations respecting the preservation of public health and 
safety, see 1 Dillon Munic. Corp., §§ 141, 144; 2 Beach Pub. Corp., § 983, et seq. 

The exercise of this power is subject to the restrictions of the state and federal con- 
stitutions. Eailroad Co. v. Husen, 95 U. S. 465; City of Crawfordsville v. Braden, 130 
Ind. 149; 1 Dillon Munic. Corp., 4th ed., §§ 141, 142. 

Sei'Tice of city board as physicians. — A city ordinance requiring the board of health 
to have persons vaccinated as a protection against small-pox does not thereby impose 
upon the board or its members the duty to do service as physicians, but only to provide 
for the doing thereof. City of Ft. Wayne v. Eosenthal, 75 Ind. 156, 159. 

Member of city board an officer — Contract. — A member of the board of health of a 
city, appointed under authority of § 48 of the act of March 14, 1867 (R. S. 1894, § 3533), 
for the incorporation of cities, is an officer within the meaning of § 52 of said act (R. S. 
1894, § 3539), and can not be interested in any contract by which an indebtedness is cre- 
ated against the city. City of Ft. Wayne v. Rosenthal, 75 Ind. 156, 161; City of Ft. 
Wayne v. Lake Shore, etc., R. Co., 132 Ind. 558, 564; McGregor v. City of Logansport, 
79 Ind. 166. 

Vaccinating" public pupils, pay.— Services rendered by a physician who is a member 
of the board of health of a city, in vaccinating pupils of the public schools, are volun- 
tary, and the city is not liable therefor. City of Ft. Wayne v. Rosenthal, 75 Ind. 156, 
162. 

Thirty-sixth. To establish stands for hackney coaches, cabs and 
omnibuses, to enforce the observance and use thereof; and to fix the 
rates and prices for transportation of persons and property from one 
part of the city to another. 

Hacks and other vehicles. — A city has power to enact ordinances authorizing police 
otficers to prescribe the places where omnibuses, hacks and other vehicles shall stand 
at a railroad depot and requiring drivers to obey the directions of such officers. Vene- 
man v. Jones, 118 Ind. 41. 

Thirty-seventh. To regulate or prohibit runners at wharves, steam- 
boat landings, railroad depots, and stations and other places. 

Thirty -eighth. To regulate the sale of all kinds of property at auc- 
tion, in the streets, stores, shops or elsewhere in the city, and to license 
auctioneers, and require them to pay a reasonable per cent, on the 
amount of sales. 

Licensing" auctioneers. — The common council has power to adopt a penal ordinance 
requiring an auction-eer to procure a license from the city. City of Goshen v. Kern, 63 
Ind. 468. 

A person who sells his own goods, as well as one who sells the goods of another, at 
public auction, is an auctioneer within the meaning of the statute. City of Goshen v. 
Kern, 63 Ind. 468. 

It was held in Schuman v. City of Ft. Wayne, 127 Ind. 109, that a city under the 
general act of incorporation could not require pawnbrokers to procure license, but since 
this decision there has been legislation empowering cities and towns so to do. R. .S. 
1894, §4313. See i)osJ, §1148. 

Thirty-ninth. To regulate the speed of horses, carriages, locomo- 
tives and other vehicles within the city. 

See clauses 17 and 42. 



§ 124 CITIES. 148 

Fortieth. To regulate all bridges, culverts, sewers, canal or draw- 
bridges, and the location thereof, and to maintain, regulate and col- 
lect tolls on any plank road heretofore built, and abandoned by the 
owners in any such city. 

See post, § 218, note, Bridges,— also U. S. 1894, § 3283. 

Navig'able waters — Federal control. — Congress may provide for the erection of 
bridges, or for the removal of the same, over navigable waters; and may prescribe 
their height, location and other matters affecting navigation. See § 1, ante, n. ; Elliott 
Eoads and Streets, p. 25. 

In towns and cities— Who may build.— While the act of 1885 (R. S. 1894, § 3283), 
imposes the duty of constructing bridges in towns and cities in certain cases upon 
the board of commissioners, still this act does not withdraw all power from towns 
and cities to build bridges, in such cases, when they deem it proper to do so. City 
of New Albany v. Iron Substructure Co., 141 Ind. 500. 

Estoppel. — Where a city, without taking any steps to have the county commissioners 
to build a bridge, procured a bridge to be built, and the contractor entered into the 
contract and constructed the bridge in good faith, the city can not set up in defense of 
the payment of the price therefor, that its action in executing the contract and procur- 
ing the construction of the bridge was ultra vires. City of New Albany v. Iron Sub- 
structure Co., 141 Ind. 500. 

County commissioners— Mandamus.— Under the act of 1885 (R. S. 1894, §3283), a 
city can not compel the county commissioners, by mandate or otherwise, to build a 
bridge at any point deemed desirable or convenient by the city government. That 
must be left to the sound discretion of the commissioners, except in cases of extraordi- 
nary public necessity. And even if a public necessity should be shown for the bridge, 
it is the judgment of the board, and not that of the city authorities, which is to deter- 
mine what kind of a bridge shall be built. Board, etc., v. City of Washington, 141 
Ind. 187. 

Under said act of 1885, which makes it the duty of boards of county commissioners to 
build all bridges within the corporate limits of any city or town within the state, the 
estimated cost of which exceeds |500, the absolute control of the city over the bridges 
is not interfered with, nor does it relieve cities from the duty of keeping the bridges 
within their corporate limits in repair. City of Goshen v. Meyers, 119 Ind. 196, 199 ; 
Board, etc., v. Washington Tp., 121 Ind. 379, 380; Spicer v. Board, etc., 126 Ind. 369, 
371 ; City of Wabash v. Carver, 129 Ind. 552. 

County bridg"e— Acceptance by city. — It is the duty of a city, in this state, to keep a 
public bridge, within its limits and of which it takes control, in repair, although such 
bridge may have been originally built and maintained by the county as part of a public 
highway, and its failure to do so renders it liable to one who suffers injury without con- 
tributory negligence. City of Goshen v. Myers, 119 Ind. 196, 200. 

Within city limits— County liability. — A complaint in an action against a county for 
a personal injury resulting from the negligence of the county in failing to properly guard 
a bridge within the city limits, while making repairs thereon, which does not show 
that the bridge belonged to the county, or that it was its duty to keep it in repair, is 
bad. The fact that the county had built the bridge, and had contracted for its repair, 
did not disclose the county's hability to maintain it. Spicer v. Board, etc., 126 Ind. 
369, 371. 

Outside but adjoining* a town. — A bridge outside the corporate limits, connected 
with a free gravel road, and constructed by the county, does not, by the fact that it leads 
up to and joins a street at the corporate line of the town, become a town bridge in such 
a sense as to relieve the county from the general duty of using reasonable care to keep 
it in a reasonably safe condition for passage. The town is excluded from the control of 



149 GOVERNMENT AND POWERS. § 124 

a bridge so situated, the right of control being vested in the county. Board, etc., v. 
Washington Tp., 121 Ind. 379, 380. 

Towu— When charg-ed with maintaining'.— A town is chargeable Avith the duty of 
maintaining a bridge built by the county only when the bridge becomes the bridge of 
the town. Board, etc., v. Washington Tp., 121 Ind. 379, 380. 

Repairs— Negligence. — It is the duty of cities to keep the bridges within their cor- 
porate limits in repair and safe for travel, no matter by whom or under what authority 
the same are erected, and they will be liable for negligence for not doing so to persons 
injured without their fault. City of Wabash v. Carver, 129 Ind. 552; Lowrey v. City of 
Delphi, 55 Ind. 250; City of Logansport v. Justice, 74 Ind. 378; City of Goshen v. Myers, 
119 Ind. 196. 

The above doctrine criticised, see Elliott Roads and Streets, pp. 44, 45. 

Notice to conncilmen. — Notice to a councilman of a defective bridge is notice to the 
city. City of Logansport v. Justice, 74 Ind. 378. 

Dilig'ence in making" repairs. — A city is responsible only for reasonable diligence to 
repair defects in its streets or bridges, or to prevent accidents therefrom after such de- 
fects are known, but where, on failure, after notice in due time to have made repairs oi 
such defects, an injury occurs therefrom, the city is liable. City of Logansport v. Jus- 
tice, 74 Ind. 378. 

Notice to a city of a defective condition of a bridge therein will be presumed from the 
continuance of such condition a sufficient length of time for the officers of such city to 
have had an opportunity to learn of such defect. City of Logansport v. Justice, 74 Ind. 
378. 

Latent defects. — In the construction of a bridge a municipal corporation is not liable 
for latent defects, which could not have been discovered by the use of reasonable dili- 
gence. Board, etc., v. Chipps, 131 Ind. 56. 

Extraordinary use. — One who uses a bridge in an unusual manner and subjects it to 
an unusual or extraordinary load or strain and is thereby injured, can not recover dam- 
ages for such injury. Board, etc., v. Chipps, 131 Ind. 56. 

A general allegation that the plaintiff was without fault is not overcome by specific 
averments showing that plaintiff attempted to pass over the bridge with a traction en- 
gine and threshing machine. The appellate court will not take judicial notice that such 
use of a bridge is unusual and unsafe. City of Wabash v. Carver, 129 Ind. 552; Board, 
etc., V. Brod, 3 App. 585. 

Forty-first. To regulate the building of party walls and partition 
fences, within the limits of said city, and prescribe by ordinance in 
what proportion the adjoining owners shall bear the expense of the 
same, and in what manner such expenses shall be levied and col- 
lected, and define the terms upon which partition walls and fences 
already constructed, may be used by adjoining owners. 

Party walls and fences.— A power conferred upon a municipal corporation "to 
authorize the erection of party walls and fences, and to regulate them," includes the 
power to authorize their erection upon the application of either owner, and without the 
consent of the other; and such an ordinance is not unconstitutional because compensa- 
tion is not provided for the land occupied by the wall. 1 Dillon Munic. Corp., § 151 ; 
Hunt V. Ambruster, 17 N. J. Eq. 208. 

See, generally, upon the subject of party walls, Briggs v. Klosse, 5 App. 129; Con- 
duitt V. Ross, 102 Ind. 166; Bloch v. Isham, 28 Ind. 37; Greenwood v. Kappes, 31 Ind. 
216; Eckleman v. Miller, 57 Ind. 88. 

Forty-second. To regulate the speed of railroad trains through the 



§ 124 CITIES. 150 

city; and also provide by ordinance for the security of citizens and 
others from the running of trains through any city, and to require 
raih'oad corporations to observe the same, and also to require such 
corporations to keep clean the gutters and crossings of the streets 
along which the railways pass. 

See clauses 17, 39 ; also § 1331.. post. ' 

Police power. — The franchise of a railroad company is subject to the exercise of the 
police power. All contracts between the railroad company and the municipality, and 
all rights granted for the use of the streets, are subject to the exercise of this power, and 
all reasonable regulations and ordinances enacted by virtue thereof. 3 Elliott Railroads, 
§1082, and cases. 

Ordinance reg'ulating* speed of trains — Validity. — An ordinance of a city requiring 
all trains within the city limits to be run at a speed not over four miles an hour, w^hen au- 
thorized .by a statute, is valid, and evidence will not be heard that such ordinance is 
unreasonable,- and therefore void. Cleveland, etc., R. Co. v. Harrington, 131 Ind. 426; 
Whitson V. City of Franklin, 34 Ind. 392 ; Kistner v. City of Indianapolis, 100 Ind. 210. 

Rig'ht to reg'ulate speed. — The speed of trains of a railroad company organized un- 
der a special law of the state may be regulated by municipal ordinance enacted in pur- 
suance of a general statute, although no reservation to regulate the speed of such com- 
pany's trains is inserted in such special charter. Cleveland, etc., R. Co. v. Harrington, 
131 ind. 426; Elliott Roads and Streets, pp. 607, 608; 2 Elliott Railroads, § 668; 3 Elhott 
Railroads, § 1082. 

Failure to enforce ordinance — Defense. — A railway company violating an ordinance 
by running its trains at a rate faster than is allowed by the terms of such ordinance, 
can not set up as a defense that the officers and citizens of a city have never enforced 
such ordinance, although it has been enacted many years. Cleveland, etc., R. Co. v. 
Harrington, 131 Ind. 426. 

It does not excuse one who attempts to cross in front of a locomotive wdiich he sees 
approaching at no great distance, that the speed was eighteen miles an hour where a 
municipal ordinance limited the speed at that point to ten miles an hour. Korrady v. 
Lake Shore, etc., R. Co., 131 Ind. 261. 

Penalty recovered of company. — An action brought by a municipal corporation to 
enforce a penalty for the violation of an ordinance regulating the rate of speed of railroad 
trains within the corporate limits is not a criminal proceeding, but essentially a civil 
action, and where the ordinance is violated by an engineer of a railroad company the 
penalty may be recovered by an action against the company. City of Hammond v. 
New York, etc., R. Co., 5 App. 526. 

The penalty may be recovered from the engineer, and he is not excused by the fact 
that the conductor was responsible for the rate of speed. Whitson v. City of Franklin, 
34 Ind. 392. 

Ordinance constitutional— Territorial jurisdiction.— Such an ordinance is author- 
ized by the statute and is not unconstitutional, and applies equally to all the territory 
wdthin the corporate limits over which a railroad runs, including that not laid off in 
lots, streets, or alleys, or occupied with buildings, and including lands owned by railroad 
companies. Whitson v. City of Franklin, 34 Ind. 392. 

Mail trains. — A prosecution for a violation of such an ordinance can not be defended 
on the ground that the railroad company was engaged in carrying the mail under a 
contract with the United States, and was required by said contract to transport the mail 
within a prescribed time, which could not be done if the towns and cities through 
w^hich the road ran were allowed to regulate the speed of trains in passing through 
them. Whitson v. City of Franklin, 34 Ind. 392. 

Faster than ordinance rate— Neg-lig-ence per se.— It is negligence per se to run a 
train of cp.rs in violation of a citv ordinance, and if any one is injured jn consequence 



151 GOVERNMENT AND POWERS. § 124 

of such negligence, without being himself guilty of contributory neghgence, he may 
recover damages for such injury. Pennsylvania Co. v. Horton, 132 Ind. 189; Shirk v. 
Wabash E. Co., 14 App. 126; St. Louis, etc., R. Co. v. Mathias, 50 Ind. 65; Pennsyl- 
vania Co. V. Hensil, 70 Ind. 569; Pennsylvania Co. v. Stegemeier, 118 Ind. 305; Louis- 
ville, etc., R. Co. V. Davis, 7 App. 222; Elliott Roads and Streets, pp. 605, 606; 3 Elliott 
Railroads, §1160. As to speed of street cars see Thompson v. Citizens', etc., R. Co., 
Ind. Sup. Ct., April 20, 1899. 

Evidence. — The ordinance need not be exhibited by copy M^ith the complaint, but 
nnder proper averments in the complaint may be introduced in evidence in an action 
against the railroad company brought by a person injured by such negligence. Madison, 
etc., R. Co. V. Taffe, 37 Ind. 361; Simons v. Gaynor^ 89 Ind. 165; St. Louis, etc., R. Co. 
v. Mathias, 50 Ind. 65. 

The negligent acts of the servants of a railroad company, in running the train at a 
higher rate of speed than the city ordinance permits, can not in any way excuse a per- 
son about to go upon the track from using proper precautions to avoid injury ; for such 
conduct could not be considered as misleading to a person, when he might easily have 
seen the approaching train if he had but looked in the direction whence it was coming. 
Pittsburgh, etc., R. Co. v. Bennett, 9 A_pp. 92. 

Sig'iials — Failure to ring' bell. — It is conclusive negligence on the part of a railroad 
company to fail to comply with a city ordinance requiring the ringing of the bell at cer- 
tain places. Louisville, etc., R. Co. v. Davis, 7 App. 222. See 3 Elliott Railroads, 
§ 1206. 

Regardless of a city ordinance, a railroad company is required to run its trains over 
frequented crossings in such a manner as to have due regard to the safety of the people 
who cross its track, the rate of speed to be guided by the . circumstances of each casev. 
Chicago, etc., R. Co. v. Spilker, 134 Ind. 380. 

Street crossing's— Gates and safeg"uards.— Under the above clause the common coun- 
cil of a city may provide, by ordinance, for the security of citizens and others from the 
running of trains through the city, and may require a railroad company to provide and 
use suitable safeguards at the intersections of streets, highways or alleys, or elsewhere, 
wdthin such city ; but such city is not liable in damages for injuries to persons or prop- 
erty which may result from the non-exercise of such legislative power by its common 
council. Kistner v. City of Indianapolis, 100 Ind. 210 ; City of Shelbyville v. Cleveland, 
etc., R. Co., 146 Ind. 66. 

Where a railroad company, in pursuance of a city ordinance, has erected gates and 
stationed a watchman at the street crossing, a traveler who approaches the crossing and 
finds the gates open and receives no warning from the w^atchman, has the right to as- 
sume that there are no approaching trains, and if, acting upon this assumption, he en- 
ters upon the crossing and is instantly confronted by trains going in opposite directions, 
and in the confusion caused by the unexpected danger into which he is thus led, is 
struck and killed, the railroad company is liable. Pennsylvania Co. v. Stegemeier, 118 
Ind. 305. 

Where a railroad company crosses a street or highway with its track the company 
must maintain the street or highway in a reasonably safe condition for the use of the 
public. Pennsylvania Co. v. Frund, 4 App. 469. 

The approaches to the part of the street and sidewalk crossing the track or right of 
way are a part of the crossing, and it is incumbent upon the company to place and 
maintain the approaches, as well as the crossing, in a condition reasonably calculated, 
in contemplation of the surrounding circumstances, to insure the safety of persons pass- 
ing over the track and upon the street and sidewalk at the crossing. Cincinnati, etc.. 
R. Co. V. Claire, 6 App. 390. 

When a railroad company is empowered and ordered by a city ordinance to raise its 
track at a crossing of an intersecting ptreet, it has the riglit and it becomes its duty to 
do so, but it must restore the street and it-; sidewalks to their former condition of use- 



§ 124 CITIES. 152 

fulness, so far as it can by the exercise of reasonable care and diligence, and failing to 
do so, it is guilty of maintaining a nuisance, and is liable to a traveler who, by reason 
thereof, sustains an injury without fault on his part. Cincinnati, etc., R. Co. v. Claire, 
6 App. 390. 

Flag'man at crossing*. — When a railroad company is required by an ordinance to 
keep a watchman at a crossing, a failure to do so is negligence ; and it may be negli- 
gence on the part of the railroad company, when the crossing is a dangerous one, not 
to keep such watchman at such crossing, even in the absence of an ordinance requiring 
it. Pennsylvania Co. v. Hensil, 70 Ind. 569; Pittsburgh, etc., Co. v. Yundt, 78 Ind. 
373; Chicago, etc., R. Co. v. Boggs, 101 Ind. 522, 527; City of Shelbj-v^ille v. Cleveland, 
etc., R. Co., 146 Ind. 66. See 3 Elliott Railroads, § 1157. 

Power conferred upon a city ''to require railroad companies to keep flagmen at 
railroad crossings of streets, and provide protection against injury to persons and 
property in the use of such railroads," etc., confers plenary power over railroads within 
the corporate limits, in order that by such requirements as in its discretion it may pre- 
scribe, and as are within the just limits of police regulation, the municipal authority 
may provide protection against injury to persons and property likely to arise from the 
use of railroads. Under such power railroads may be required to place barriers or 
guards between their tracks and public parks and highways. Hayes v. Michigan Cen- 
tral R. Co., Ill U. S. 228. 

Forty-third. To construct and regulate sewers drains and cisterns 
and provide for the payment of the cost of constructing the same ; to 
cause the same to be done by contract given to the best bidder after 
advertising to receive proposals therefor ; to provide for the estimate 
for the cost thereof, and the assessment of the same upon the owners 
of such lots and lands as may be benefited thereby in such equitable 
proportions as the common council may deem just, which estimate 
shall be a lien upon such lots and lands, and may be enforced by the 
sale of the same in such manner as the common council may provide: 
Provided, however, That not to exceed ten per cent, of the value of such 
lots or lands as the same is valued and assessed upon the tax dupli- 
cate, for state and county or city taxes, shall be assessed against such 
lots or lands in any one year. 

See clause 26 and post, §§ 127 and 183, et seq. ; also post,^ 1090 et seq. and 1107 et seq. 

Authority to construct drains and sewers — Implied power. — The authority to con- 
struct sewers is incident to the general right of a municipal corporation to maintain 
streets and highways. This power resides in all municipal corporations unless expressly 
denied them by the legislature. Leeds v. City of Richmond, 102 Ind. 372 ; City of Ft. 
Wayne v. Coombs, 107 Ind. 75; Kinser v. DeWitt, 7 App. 597, 602; Coburn v. Bossert, 
13 App. 359, 362 ; Elhott Roads and Streets, p. 362 ; 2 Dillon Munic. Corp., 4th ed., § 805, 
et seq. 

Lands and easements for sewers— Express and implied powers.— The statute in 
express terms confers exclusive jurisdiction upon municipal corporations over all high- 
ways within their limits, and also confers broad powers respecting drains and sewers. 
There is, therefore, a general authority vested in cities to construct sewers, and this 
power involves all subsidiary powers essential to make it effective. The city, therefore, 
as incident to the power to construct sewers, has the right to acquire land by ordinary 
methods needed for such sewers or drains, or the outlets thereof, or may acquire an 
easement in land for such purposes. Schipper v. City of Aurora, 121 Ind. 154; Leeds 
V. City of Richmond, 102 Ind. 372. 

City— Jurisdiction— Drainagfe commissioners.— The cities of this state have exclusi^^ 



153 GOVERNMENT AND POWERS. § 124 

jurisdiction of the matter of drainage within their limits, and there is no authority for 
the construction of drains in cities by drainage commissioners, under the direction of 
the circuit court. Anderson v. Endicott, 101 Ind. 539; State v. Jackson, 118 Ind. 553; 
Scruggs V. Eeese, 128 Ind. 399, 403. 

The jurisdiction of the circuit court to establish a ditch, under the drainage law of 
1881, partly within the limits of an incorporated city, and levy assessments upon city 
property, can not be questioned by a property owner in a suit to collect an assessment. 
State V. Jackson, 118 Ind. 553. 

Sewers, how built and paid for. — A municipal corporation is not bound to let all 
public work to contractors ; but sewers, bridges and the like may be built by the officers 
of the city, if the governing corporate officers deem it expedient. Cummins v. City of 
Seymour, 79 Ind. 491. See City of Aurora v. Fox, 78 Ind. 1. But as to sewers, see R. S. 
1894, § 4273, et seq., post, § 1090, et seq. 

Sewers and drains— When part of street improvement.— When the sewer or drain 
is a necessary part of the street improvement, and is adapted and intended to remove 
the surface or storm w^ater from the street, it may be constructed under street improve- 
ment proceedings and contract, and paid for as a part of the street improvement. City 
of Elkhart V. Wickwire, 121 Ind. 331 ; Kirkland v. Board of Public Works, 142 Ind. 123. 

Sewers— City not liable for— Liability on property benefited. — Under the act ap- 
proved March 8, 1889, as amended March 6, 1891, (R. S. 1894, §4288, et seq., Barrett law ; 
post, §§ 1107-1119), the city assumes no obligation to pay for the construction of a sewer, 
but the same is to be paid for out of assessments on the property benefited thereby. If 
bonds are issued in pursuance of this act, they do not create an indebtedness against 
the city. Robinson v. City of Valparaiso, 136 Ind. 616; Quill y- City of Indianapolis, 
124 Ind. 292; City of New Albany v. McCulloch, 127 Ind. 500. 

Barrett law — Amendment — Sewers.— The act approved March 8, 1889, known as the 
Barrett law (Acts 1889, p. 237), '* providing the mode and manner of making street and 
alley improvements and building sewers," and the act approved March 6, 1891, amend- 
ing the former act (Acts 1891, p. 323) constitute one act. The latter act is blended with 
the former. The amended section took the place of the original section, which it 
amended. (Post, §§ 1107-1119.) Robinson v. City of Valparaiso, 136 Ind. 616. 

Construction of sewers — Liability of city.— In the construction of sewers and other 
public works authorized by law, cities are liable for consequential injuries resulting 
from negligence only. Peck v. City of Michigan City, 149 Ind. 670; City of Richmond 
v. Test, 18 App. 482 ; City of Terre Haute v. Hudnut, 112 Ind. 542. 

Leg'islative and judicial powers— Error. — A city is not liable for error in the exer- 
cise of merely legislative or judicial powers, and therefore it can not be held for failure 
to undertake the construction of sewers and drains, unless they be made necessary by 
its own acts ; nor for errors of judgment in the absence of negligence. City of Evans- 
ville V. Decker, 84 Ind. 325; Cummins v. City of Seymour, 79 Ind. 491, 494; Stackhouse 
V. City of Lafayette, 26 Ind. 17; City of Logansport v. Wright, 25 Ind. 512; Roll v. 
City of Indianapolis, 52 Ind. 547; Dooley v. Town of Sullivan, 112 Ind. 451; City of 
Terre Haute v. Hudnut, 112 Ind. 542; City of North Vernon v. Voegler, 103 Ind. 314; 
Rozell V. City of Anderson, 91 Ind. 591 ; 1 Beach Pub. Corp., § 764. 

Where a municipal corporation, by its own act, makes a sewer or drain nece^ary, the 
duty then rests upon it to provide the same, and it will be liable in damages for failure 
to do so. Elliott Roads and Streets, p. 363; City of Crawfordsville v. Bond, 96 Ind. 
236; City of Indianapohs v. Lawyer, 38 Ind. 348; Cummins v. City of Seymour, 79 Ind. 
497; City of New Albany v. Lines, 21 App. 380. 

Plans— Error of judg'ment— Ministerial act— Neg'lig'ence.- A municipal corpora- 
tion is not liable for mere error of judgment as to the plan of a public improvement, but 
i.s responsible for negligence in devising the plan of an improvement, as well as for 
negligence in executing the work. When the work is undertaken it becomes a minis- 



§ 124 CITIES. 154 

terial one, and the corporation must exercise ordinary care and skill in devising the 
plan and performing the work. Weis v. City of Madison, 75 Ind. 241, 250; Cummins 
V. City of Seymour, 79 Ind. 491; City of Evansville v. Decker, 84 Ind. 325; City of 
Crawfordsville v. Bond, 96 Ind. 236 ; City of North Vernon v. Yoegler, 103 Ind. 314, 316 
Eice V. City of Evansville, 108 Ind. 7, 8; City of Terre Haute v. Hudnut, 112 Ind. 542 
City of Seymour v. Cummins, 119 Ind. 148; City of New Albany v. Eay, 3 App. 321 
City of Valparaiso v. Eamsey, 11 App. 215 ; City of Vincennes v. Eichards, 23 Ind. 381 
City of Peru v. Brown, 10 App. 597; EUiott Eoads and Streets, pp. 365, 366; 1 Beach 
Pub. Corp., §§ 766, 767. 

Contributory neg'lig'ence. — In actions against municipal corporations for injuries re- 
sulting from the negligent construction or maintenance of sewers, the plaintiff must 
show that he was free from contributor^^ negligence. Eoll v. City of Indianapolis, 52 
Ind. 547, disapproved; City of Ft. Wayne v. Coombs, 107 Ind. 75; City of Valparaiso 
V. Eamsey, 11 App. 215. See citations under preceding note. See, also. City of North 
Vernon v. Voegler, 89 Ind. 77. 

But by the act of 1899 the above rule is changed so that the burden of showing con- 
tributory negligence is on the defendant. Acts 1899, p. 58. 

Where the city is charged with having committed a positive aggressive wrong, as the 
maintenance of a nuisance, it is liable to the person whose property is damaged thereby, 
regardless of the question of contributory negligence. City of Lebanon v. Twiford, 13 
App. 384; Stein v. City of Lafayette, 6 App. 414. 

Sew-ers — Damages for neglig-ent construction— Nuisance.— If deposits from a 
sewer constmcted and maintained by a city cause peculiar injury to the owner of docks, 
by preventing or materially interfering with the accustomed and lawful use of such 
docks, the city is liable in damages. Peck v. City of Michigan City, 149 Ind. 670. 

The following principles with respect to the liability of municipal corporations in or- 
daining, planning and constructing sewers are well established : 

1. That municipal corporations are not liable to individuals for judicial errors, al- 
though private rights may be injured thereby. 

2. They are not liable to individuals for the exercise of their ordaining powers, how- 
ever mistaken, or even corrupt, their policy may be, and although private injuries may 
result therefrom. 

3. They are liable to individuals for w^rongful acts or dereliction of duty, in the exer- 
cise of their ministerial acts, whenever injury to private rights is the direct and natural 
consequence. 

4. When liable, they are liable the same as individuals would be under the same cir- 
cumstances. But it is often difficult to distinguish between the judicial, ordaining and 
ministerial acts, as these powers and duties are frequently blended, and it is quite im- 
possible to derive much light from the analogy to personal liabilities, for individuals are 
seldom clothed vrith the powers, or charged with the duties, which belong to municipal 
corporations. Eoll v. City of Indianapolis, 52 Ind. 547, 553. 

Capacity of sewers — Liability. — Where there is no negligence in devising the plan 
of a sewer or in constructing it, a municipal corporation is not liable for an injury to 
private property resulting from overflows caused by the insufficient capacity of the 
sewer. Eice v. City of Evansville, 108 Ind. 7 ; City of Terre Haute v. Hudnut, 112 Ind. 
543: Eozell v. City of Anderson, 91 Ind. 591; Eoll v. City of Indianapohs, 52 Ind. 547. 

Skill required in plan for sewer. — Where the authorities of a municipal corporation 
undertake the work of constructing a sewer or system of sewers, it is their duty to use 
reasonable care to procure the sei-vices of men skilled in such matters to prepare the 
plans for the same, and, if there is a lack of such care, by reason of which the plans 
are defective, they are guilty of negligence, for which the corporation must answer in 
case of damage resulting from such defective plan. City of Terre Haute v. Hudnut, 112 
Ind. 542; Elhott Eoads and Streets, pp. 365, 366. 

The skill and care which is incumbent relates as well to the plan as to the execution 



155 GOVERNMENT AND POWERS. § 124 

of the work, and to the capacity of the sewer as well as to the mechanism in its con- 
struction. City of Indianapolis v. Huffer, 30 Ind. 235. 

Defective plan — Evidence. — Where a recovery is sought for injuries caused by a 
defective sewer, or by a sewer of inadequate size, the defect or insufficiency being 
caused by a defect in the plan, it is competent for the municipal corporation to show 
that reasonable care was exercised in the employment of a competent engineer or ex- 
pert to prepare the plan, and that ordinary care was used in seeing to it that he exer- 
cised skill, and, to this end, evidence of consultation with experts, so employed, or of 
examination of plans by councilmen, is competent, though not in writing. City of 
Terre Haute v. Hudnut, 112 Ind. 542, 548. 

Wlien no liability. — Where, however, reasonable care is exercised by the munic- 
ipal authorities in securing the employment of fair care and skill in the prepara- 
tion of plans for a sewer, and ordinary care is used to see that such skill is brought into 
exercise, then there is no negligence, and there can be no liability, although when the 
plan is carried into effect a defect may be developed which destroys or impairs its 
efficiency. City of Terre Haute v. Hudnut, 112 Ind. 542, 546. 

Plans by property owner. — Where a municipal corporation makes use of private 
property for the purpose of constructing a sewer, and in order to obtain the privilege of 
using the property submits to the demand of the owner to construct the sewer accord- 
ing to the plans and specifications prepared by him, it is liable for negligence in the 
construction and maintenance of such sewer. City of Ft, Wayne v. Coombs, 107 Ind. 75, 78. 

Ordinary care required. — Where a municipal corporation constructs a sewer, it is 
bound to use ordinary care and skill, and it is not necessary that it should be averred 
in a complaint for injuries resulting from the defective construction thereof, that the 
corporate authorities had notice of defects caused by want of skill or care in doing the 
work. City of Ft. Wayne v. Coombs, 107 Ind. 75, 77; City of Ft. Wayne v. Patterson, 3 
App. 34, 38. 

Damag'es, how paid. — Damages arising from injuries occasioned by negligence in 
the construction of a public sewer by a municipal corporation are not part of the ex- 
pense of constructing the sewer, and can not be assessed against private property, but 
must be paid out of the general treasury. Leeds v. City of Richmond, 102 Ind. 372, 381. 

Abandonment of plan — Effect. — The city of Aurora, to drain one of its streets ter- 
minating at the river bank, adopted a plan which contemplated the construction of a 
stone gutter to extend from low water mark to the top of the bank. Plaintiff, for the 
protection of this work, agreed to make a filling, at either side of the gutter, in consid- 
eration of the grant of the land over which the city had acquired an easement for the 
purpose of this drainage, to be used for a private landing. Owing to a change in the 
plan of the work it was found that no landing could be made. The plaintiff, while not 
entitled to recover damages for the breach of the contract, being bound to take no- 
tice of the city's right to change the plan of the work, could recover for work done 
under the contract, it being a contract not prohibited by statute, or in violation of pub- 
lic policy. Schipper v. City of Aurora, 121 Ind. 154, 158. 

Defective drainag-e— Unskillful plan.— Where an imperfect and unskillful plan was 
adopted, the execution of which caused a large body of surface water to collect in a 
basin excavated in the alley adjacent to a house without any outlet whatever, and the 
water thus collected was discharged into the cellar, the city was liable. City of Ne-w 
Albany v. Ray, 3 App. 321, 323. 

Proper plan— Contractor's negiig'ence.— If a city adopts a proper plan of drainage 
and lets a contract for the doing of the work, the contractor to use his own methods 
and means for the construction of the drain, the city is not liable for damages resulting 
from the contractor's negligence ; but if the city adopts a defective plan, and the work 
is constructed according thereto, and a special injury results to a property owner bv 
reason of negligence in devising the plan, the city is liable. City of Seymour v. Cum- 
mins, 119 Ind. 148, 152. 



§ 124 CITIES. 156 

Who can recover damag'es. — In such case the damages accrue to the person who 
. owns the property at the time of the injury, and his right to maintain an action there- 
for is not affected by the fact that he parts with the title to the real estate after the com- 
mencement of the action. City of Seymour v. Cummins, 119 Ind. 148, 153 ; Stein v. 
City of Lafayette, 6 App. 414; City of New Albany v. Lines, 21 App. 380. 

Dralnag'e — Nuisance — Special injury .^ — Where a city constructs an open ditch upon 
r. street, so near to a plaintiff's lot as to cause portions thereof to fall into the ditch, and 
so as to deprive him of access to his residence, and to affect the healthfulness of his 
property by causing filthy water and sewage to become stagnant adjacent thereto, it is 
liable in damages. City of Seymour v. Cummins, 119 Ind. 148, 149. 

Insufficient defense — Ordinance. — Where such injury is caused by grading a street, 
the fact that such grading was done in pursuance of an ordinance of the city in no man- 
ner exonerates the city from liability for such injury, and a request, in an action to re- 
cover damages therefor, to thus instruct the jury, was properly refused. City of North 
Vernon v. Voegler, 89 Ind. 77, 80. 

Outlet a necessary part. — The outlet is a necessary part of a sewer, and whenever a 
municipal corporation, by its system of sewerage, renders an outlet necessary, it must 
provide one, and it must be constructed with ordinary care and skill. City of Evans- 
ville v. Decker, 84 Ind. 325, 329; City of Crawfordsville v. Bond, 96 Ind. 236, 242; 
Leeds v. City of Richmond, 102 Ind. 372, 380; City of Ft. Wayne v. Coombs, 107 Ind. 
75, 81; Patoka Tp. v. Hopkins, 131 Ind. 142, 143; City of New Albany v. Ray, 3 App. 
321, 322; Town of Monticello v. Fox, 3 App. 481, 488. 

Pollution of stream. — A\Tiere sewers are constructed by a city with due care and skill 
where public necessity requires them to be , and upon modern , improved plans , and without 
negligence or mahce in their construction or operation, the city is not liable for dam- 
ages because the sewage, when combined with other agencies, pollutes the waters of a 
stream and annoys the owners of a factory several miles further down the stream. City 
of Richmond v. Test, 18 App. 482. 

Surface water — Injury by. — A city is not liable for injuries consequent merely upon 
the careful and skillful improvement of its streets, whereby surface water is thrown 
upon- private property, but it is liable if it collect the water in a channel and pour it 
upon another's land, within or without its corporate boundaries. Weis v. City of Mad- 
ison, 75 Ind. 241, 248; City of Evansville v. Decker, 84 Ind. 325, 328; City of North Ver- 
non V. Voegler, 89 Ind. 77, 79; City of Crawfordsville v. Bond, 96 Ind. 236, 242; Davis 
V. City of Crawfordsville, 119 Ind. 1, 2; Town of Monticello v. Fox, 3 App. 481, 488; 
City of New Albany v. Ray, 3 App. 321; Patoka Township v. Hopkins, 131 Ind. 142; 
City of Indianapolis v. Lawyer, 38 Ind. 348; City of Indianapolis v. Tate, 39 Ind. 282; 
Elhott Roads and Streets, p. 363. 

The collecting of surface water into one channel by a city and causing it to flow upon 
another's land, is an actionable injury, being a ministerial and not a legislative or judi- 
cial act. Weis v. City of Madison, 75 Ind. 241, 251 ; City of New Albany v. Lines, 21 
App. 380. 

Culvert— Water dlscharg-ed.— If a city, by the use of a culvert not constructed by it, 
damage a citizen by reason of discharging the drainage of its streets upon his lot, it is 
liable. City of Crawfordsville v. Bond, 96 Ind. 236, 240. 

A complaint against a city alleging, with reasonable certainty, that the municipal au- 
thorities, by the improvement of a street, collected in one channel the surface water 
falling upon divers streets, and flowed it against an insufficient culvert, and thus unlaw- 
fully cast the water in a body upon the private property of the plaintiff, contained facts 
sufficient to constitute a cause of action. Weis v. City of Madison, 75 Ind. 241, 254. 

Culvert built by railroad company— Liability.— Where a municipal corporation has 
granted a right of way through a street to a railroad company, and the company, solely 
for its own use, erects a culvert on the street, the municipal corporation is not liable for 



157 GOVERNMENT AND POWERS. § 124 

an injury resulting to an individual from an overflow of water caused by the defective 
construction of the culvert. Stackhouse v. City of Lafayette, 26 Ind. 17. 

While the city will not be liable for injury resulting from defective sewers and cul- 
verts constructed for the exclusive use of the railroad company, if the city adopt them 
for its own use, and they prove insufficient, or become out of repair, the city will be 
liable for injury resulting to adjoining property by reason of such insufficiency. The 
city can not delegate her general power and adopt the work of the railroad company as 
a part of her general system without responsibility for defects in the work. City of In- 
dianapolis V. Lawyer, 38 Ind. 344; City of Indianapolis v. Tate, 39 Ind. 282; State v. 
Board, etc., 80 Ind. 478; Lostutter v. City of Aurora, 126 Ind. 436. 

Culvert— Error in jiidg'ment. — A city is not liable in damages for an overflow of 
land caused by a defective culvert in one of its streets, unless negligence is shown in 
the plan or construction of such improvement. In such case an error in judgment will 
not create liability. City of Peru v. Brown, 10 App. 597. 

Culvert — Xeg'lig'ent construction. — If a municipal corporation negligently construct 
a culvert, and damages are sustained by property owner because of the overflowing of 
his property on account of such negligent construction, the culvert being insufficient to 
carry off the water at that point, the property owner being without fault, may recover 
damages. City of Valparaiso v. Eamsey, 11 App. 215; Town of Boswell v. Wakley, 
149 Ind. 64. 

The fact that the city promised to repair the defect, and the reliance of the property 
owner on such promise, will not relieve the property owner from negligence during the 
period of such reliance. City of Valparaiso v. Ramsey, 11 App. 215. 

Municipalities are liable for negligence of officers in construction and repair of bridges, 
culverts, etc., even if counties are not. Town of Boswell v. Wakley, 149 Ind. 64. 

Repairs — Neg'lig'ence. — A city having constructed sewers and drains is bound to 
keep the same in repair, and is liable for damages caused without the fault of a property 
owner, by its negligence in failing to keep the same in repair. City of South Bend v. 
Paxon, 67 Ind. 228; City of Ft. Wayne v. Coombs, 107 Ind. 75; City of Valparaiso v. 
Cartwright, 8 App. 429; Elliott Roads and Streets, p. 364. 

Complaint. — Where the gist of an action stated in the complaint is negligence of the 
municipality in failing to keep a drain or open ditch in repair, by carelessly and 
negligently allowing the same to fill up with sand and other obstructions, and by build- 
ing across the drain approaches to adjoining alleys without placing drains under the ap- 
proaches, by reason of which obstructions the water overflowed the drain and flowed 
into plaintiff's cellar, keeping it damp and unhealthful, injuring the foundation of 
the house and destroying large quantities of personal property mentioned, the com- 
plaint states a cause of action. City of Valparaiso v. Cartwright, 8 App. 429. 

Condemnation of private property— Eminent domain.— Under the above clause the 
power to condemn and appropriate private property for the construction of sewers does 
not exist. The right of eminent domain lies dormant in the state until legislative action 
is had pointing out the occasion, mode, conditions and agencies for its exercise ; and 
the statute has not expressly conferred the power. Allen v. Jones, 47 Ind. 438; Leeds 
V. City of Richmond, 102 Ind. 372, 377; Kinser v. Dewitt, 7 App. 597, 602; City of 
Richmond v. Test, 18 App. 482. The case of Allen v. Jones, supra, modified. Jackson 
V. Smith, 120 Ind. 520. 

Beyond corpoi'ate boundaries.— A city may extend its drains beyond the corporate 
boundaries. The authority to do so is expressly conferred by the statute, but vvithout a 
statutory provision to that effect the right exists. City of Evansville v. Decker, 84 Ind. 
325; Cummins v. City of Seymour, 79 Ind. 491. 

Hig-hAvay beyond cor])orate limits— Use for drainage.— A municipal corporation 
has authority to use a public highway lying outside of its boundaries for the purpose of 
drainage, without paying or tendering damages to adjacent property owners, and for 



§ 124 CITIES. 158 

consequential damages resulting from the proper and reasonable exercise of such author- 
ity there can be no recovery. Cummins v. City of Seymour, 79 Ind. 491 ; City of Ft. 
"Wayne v. Coombs, 107 Ind. 75, 80; ElUott Eoads and Streets, p. 362. 

Extraordinarj^ freshets.— In planning and constructing sewers and drains, a city is 
not bound to provide for extraordinary freshets, but as to such as may be reasonably 
anticipated, though only at long and irregular intervals, it is so bound. City of Evaus- 
ville V. Decker, 84 Ind/32o, 328; City of Madison v. Eoss, 3 Ind. 236. 

The degree of care and foresight which is necessary to use is that which a discreet 
and cautious man would or ought to use, if the risk and loss were to be exclusively his 
own ; and it should be in proportion to the nature and magnitude of the injury likely to 
follow from its omission. City of Madison v. Eoss, 3 Ind. 236. 

Assessments. — The above clause is in no wise affected by the act of April, 1885 
(E. S. 1894, § 3626, post § 221), in relation to the apportionment and collection of 
assessments for street improvements. City of Elkhart v. AVickwire, 121 Ind. 331. 

Ten per cent. limit. — Assessments for the construction of sewers, drains and cisterns 
which exceed ten per cent, of the assessed value of the property appearing on the tax 
duplicate, prohibited by the proviso in the above clause relating to their construction, are 
void only as to the excess ; and one seeking to annul the assessment can not complain 
in collateral proceedings until they have paid, or offered to pay, all except the excess. 
City of Elkliart v. Wickwire, 121 Ind. 331. 

l"^nder above clause, the ordinance having provided how the assessments should be 
made and the proportion to be paid by the property holders and by the city, declaring the 
assessments liens upon the property, and providing the mode of their collection, it was 
proper for the city to pay the contractors and levy the assessments in installments, 
thereby lessening the burden of the property holders. In such case the assessments 
may be made for the benefit of the city and precepts issued in its name, notwithstanding 
the ordinance did not provide in whose name the precepts should issue. City of Elk- 
hart V. AVickwire, 121 Ind. 331. 

Benefits— J iidg-ment and discretion of council.— The question of benefits to property 
in a city from the construction of a sewer having once been passed upon by the common 
council, no other court or tribunal has any power to review or pass upon it. AATien the 
council has decided by its estimate and assessment what property is benefited, and in 
what proportion, that decision is final and complete, and there is no power in any judi- 
cial tribunal to interfere, unless for fraud or corruption in making the assessment. City 
of Ft. Wayne v, Cody, 43 Ind. 197; Cole v. State, 131 Ind. 591, 596; Eobinsonv. City of 
Valparaiso, 136 Ind. 616; Crawfordsville, etc., Assn. v. Clements, 12 App. 464. 

If a sewer is established by an ordinance defining the route along which it shall be 
constructed, the material to be used, and size of the sewer, declaring what real estate 
would be benefited by the construction of the same, and directing that the cost be 
assessed against the owners of the real estate benefited, the common council can not 
thereafter, by another ordinance, provide for the extension of the sewer, changing also 
the character of the material to be used, as well as the size of the sewer, but not declar- 
ing any change in the real estate benefited, and still charge the cost of the sewer upon 
the same property which would have been benefited by the construction of the sewer 
provided for in the first ordinance. City of Columbus v. Storey, 35 Ind. 97. 

Property exempt from taxation.— A building and the ground upon which the same 
is situated, used for religious purposes, are not liable to assessment to contribute to the 
cost of the construction of sewers in a city. Such property not being valued and 
assessed upon the tax duplicate for state and county or city taxes, no method is pro- 
vided by law for its assessment for the purpose of sewerage. First Presbji:erian Church, 
etc., V. City of Ft. Wayne, 36 Ind. 338. Contra as to street improvements, Eausch v. 
Trustees, etc., 107 Ind. 1. See also subsequent legislation, E. S. 1894, § 4288, et seq. 
(post, §§1107-1135). 



159 GOVERNMENT AND POWERS. § 124 

Assessments— Waiver of irreg"ularities under Barrett law.— A property owner who, 
in consideration of the right to pay his assessment in semi-annual installments, has 
agreed that he will waive all irregularities in the assessment, can not question the 
validity of the provision of the act known as the Barrett law (R. S. 1894, §4288, etseq.; 
post, § 1107, et seq.), that "no suit shall lie to restrain or enjoin the collection of such as- 
sessment," and that the validity of such assessment shall not be questioned. Such 
provision applies only to those persons who, in consideration of their right to pay in 
installments, agree in writing, to be filed with the city clerk, that they will make no 
objection to the legality or regularity of their respective assessments, and is consti- 
tutional. Quill V. City of Indianapohs, 124 Ind. 292. 

Lien of local assessment — Notice. — Notice at some stage of the proceedings prior 
to a conclusive judgment is requisite in order to authorize the subjection of property to 
a special lien for a local assessment, but it is competent for the legislature to prescribe 
the kind of notice, and the tribunal before which it may be heard. McEneney v. Town 
of Sullivan, 125 Ind. 407; Garvin v. Daussman, 114 Ind. 429; Kuntz v. Sumption, 117 
Ind. 1; Kiphartv. Pittsburgh, etc., E. Co., 7 App. 122; Killian v. Andrews, 130 Ind. 
579; Law v. Johnston, 118 Ind. 261; Johnson v. Lewis, 115 Ind. 490. 

Yoid assessments — Injunction.— An assessment for a public sewer made under the 
statute for street improvements, and placing the assessment not according to the bene- 
fits received but according to the lineal measurement of the property fronting on the 
sewer, is void. Crawfordsville, etc., Assn. v. Clements, 12 App. 464. 

Where there is no legal authority to make an assessment, its enforcement and collec- 
tion may be enjoined. City of Terre Haute v. Mack, 139 Ind. 99; Crawfordsville, etc., 
Assn. V. Clements, 12 App. 464; Balfe v. Lammers, 109 Ind. 347; City of Ft. Wayne v. 
Shoaff , 106 Ind. 66 ; Goring v. McTaggart, 92 Ind. 200. 

Estoppel— Improvement not made under color of statute. — A property owner has 
the right to assume that his property will be assessed for improvements at least under 
color of the statute, and where the remedy sought is not a collateral one but a direct 
proceeding attacking the assessment, there is no estoppel. Crawfordsville, etc., Assn. 
v. Clements, 12 App. 464. 

Bailroad rig'ht of way— Assessment of. — The right of way of a railroad company 
which abuts upon a street may be assessed for the construction of a sewer ; also for the 
improvement of the street. Such right of w^ay can not be sold to enforce the lien of 
the assessment, but personal judgment may be taken against the company for the 
amount of the assessment, and execution levied upon personal property. Pittsburgh, 
etc., R. Co. V. Hays, 17 App. 261; Lake Erie, etc., R. Co. v. Bowker, 9 App. 428. 

City council proceeding's — Sewer assessment— Evidence— Appearance— Waiver. — 
In an action to enforce a sev/er assessment lien, it was not error to admit in evidence, 
over defendant's objection, because of certain descriptions therein and misnomer of 
defendant, the transcript of proceedings of the city council upon which the alleged lien 
was predicated, where it appears that during the proceedings before the council, which 
resulted in the. assessment of benefits, for which the lien is sought to be enforced, and 
before the same were finally settled and confirmed upon the report of the civil engineer, 
the defendant, by its attorneys, made a full appearance to the proceedings and filed a 
remonstrance, no objection then being offered to the description and alleged misnomer. 
Such facts constituted a waiver to the objection, even if it ever had any merits. Lake 
Erie, etc., R. Co. v. Bowker, 9 App. 428. 

Injunction. — The matter of constructing sewers, and accepting the same when com- 
pleted, is placed in the hands of the council, and the judgment of the council can not 
be questioned by collateral attack by way of injunction to restrain the city from accept- 
ing a system of sewers and from paying therefor by assessment or otherwise, on account 
of the defective construction thereof. The law affords the property owner a full and 
complete remedy therefor, and injunction will not lie. Robinson v. City of Valparaiso, 



§ 124 CITIES. 160 

/ 

136 Ind. 616; McEneney v. Town of Sullivan, 125 Ind. 407; City of Ft. Wayne v. Cody, 
43 Ind. 197; Crawfordsville, etc., Assn. v. Clements, 12 App. 464. 

In an injunction suit, in such case, only defects or irregularities affecting the jurisdic- 
tion can be made available. Questions as to the manner in which the work was done 
under the contract, and kindred questions, can not be considered in such suit, for they 
do not go to the jurisdiction. McEneney v. Town of Sullivan, 125 Ind. 407. 

As long as the corporate authorities keep within the discretion conferred upon them 
they are the exclusive judges of the plan and method of constructing drains and sewers, 
and courts can not interfere with the exercise of such discretion ; but they can prevent 
by injunction the corporation from collecting water in one body or channel and pour- 
ing it upon the property of a citizen. Town of Sullivan v. Phillips, 110 Ind. 320; Leeds 
V. City of Eichmond, 102 Ind. 372; City of Kokomo v. Mahan, 100 Ind. 242; Elliott 
Roads and Streets, pp. 362, 363. 

Injunction— Collateral attack— Presumption.— In a collateral attack upon the right 
of the city to enforce its assessments for the construction of a sewer every presumption 
will be taken in favor of the action of the city and its officers, and unless the complaint 
discloses a state of facts which show clearly that the assessments are void, the right to 
enforce their collection will be presumed. City of Elkhart v. Wickwire, 121 Ind. 331. 

Action to quiet title — Collateral attack. — An assessment for construction of sewer 
drainage is within the subject of the jurisdiction of the common council, and can not be 
declared void in a collateral attack to quiet title to land sold for the assessment, unless 
it appears there was no authority over the particular improvement ordered or the par- 
ticular property assessed. Jackson v. Smith, 120 Ind. 520. 

One who seeks to quiet title to land sold for an assessment for drainage is not entitled 
to a general decree while any part of the assessment is due ; one who would save his 
title must pay, or tender payment, of the lien. Unless the assessment is wholly void he 
is not entitled to a general decree. Jackson v. Smith, 120 Ind. 520. 

Sewers, when not required, — Private persons, by so improving their lots as to inter- 
fere with the flow of surface water, can not impose on a city the duty of undertaking 
the construction of sewers. City of Evansville v. Decker, 84 Ind. 325, 331. 

Liability to person tapping'. — A municipal corporation is liable to one who, for his 
private benefit, connects his premises with a sewer constructed by such corporation, for 
injuries resulting from the negligent construction or maintenance thereof. City of Ft. 
Wayne V. Coombs, 107 Ind. 75, 83; Town of Monticello v. Fox, 3 App. 481,489. See 
Roll V. City of Indianapolis, 52 Ind. 547. 

Rig-ht of abutting' owner to dig- trench in alley— Consent of municipal authorities 
—Ordinance prohibiting" excavation.— An abutting property owner may dig a trench 
in a public alley for the purpose of making a sewer connection without the consent of 
the municipal authorities, unless there is an ordinance to the contrary, and the exist- 
ence of the ordinance must be made to appear by the party having the burden of proof. 
Zimmerman v. Baur, 11 App. 607. 

Permit for sewer tapping'— Conditions— Liability.— Where a permit granted by a 
municipal corporation to a property owner, under which he made connection with 
sewer, contained the proviso: ''^Provided, hoicever, and this permit is hereby granted 
only on the express condition, that the owners and tenants for whose benefit such drain 
and connection are made, and each succeeding tenant, in consideration of the privileges 
hereby granted and hereafter enjoyed, shall hold the city of Indianapolis harmless from 
any loss or damage that may in any wise result from, or be occasioned by, the construc- 
tion, use or existence of such tapping and connection," it was optional with the 
property owner to tap the public sewer, or not, with his private drain, according to the 
terms offered him by the ordinance, and having voluntarily accepted the terms of the 
ordinance the city was not liable to the property owner, or his tenant, for damages result- 
ing from the insufiicient size and capacity of the sewer. Roll v. City of Indianapolis, 
52 Ind. 547. 



161 GOVERNMENT AND POWERS. § 124 

Failure to provide drainag^e.— A ditch was established by decree of court, upon pe- 
tition of a property owner. The ditch in part ran through a town, but the town had 
nothing to do with its construction, and never repaired it or drained into it, and had no 
relation to it save that the greater portion thereof, if not all of it, so far as it was com- 
pleted, was within the corporate limits, and the town had been assessed for benefits to 
certain of its streets and had paid such assessments. The owner of property in the 
town which was damaged by reason of defects in said ditch could not maintain an ac- 
tion against the town, since a municipal corporation is not responsible for failure to 
exercise its power to provide drainage. Town of Monticello v. Fox, 3 App. 481, 487. 

Drainage contract, Avlieil void. — The governmental functions and powers of a mu- 
nicipal corporation must remain free and untrammeled, to be exercised for the benefit of 
the inhabitants as the emergencies may arise, and under this rule a municipal corpora- 
tion can not make a contract to furnish drainage for the lands of a private person. Such 
a contract, being a limitation on the governmental functions, is absolutely void. Ham- 
ilton V. City of Shelbyville, 6 App. 538, 543. City of Peru v. Gleason, 91 Ind. 566. 

Defective drainag'e — Pleading*. — In an action against a city for damages for wrong- 
fully collecting a large body of surface water upon a public alley, by artificial means, 
without providing any outlet therefor, whereby the plaintiff's premises were overflowed, 
where the complaint alleged that the defendant wrongfully excavated alongside of the 
plaintiff's house in said alley a hole, and caused to be drained therein the water falling 
and flowing upon said alley, without providing any outlet therefor, thereby causing said 
hole to fill up with water and overflow plaintiff's cellar, etc., the complaint sufficiently 
showed that the city was engaged in a municipal undertaking from which the alleged 
injury resulted. City of New Albany v. Ray, 3 App. 321. 

Lots below adjacent streets. — If surface water flow upon a lot in a street because of 
its being below the level of adjacent streets or lots, the owner can not recover damages 
therefor from the city. Weis v. City of Madison, 75 Ind. 241, 249. 

Neg'lig'ence— Evidence.— In an action against a city to recover for injuries caused by 
a defective sewer, constructed by the corporate authorities, evidence of a break in the 
sewer about one hundred feet distant from the point where the break occurred which 
caused the injury for which recovery was sought, was competent for the purpose of 
charging the city with knowledge, as well as for the purpose of showing the defective 
character of the work and materials employed, and that by reason of time and use the 
sewer had got out of repair. City of Ft. Wayne v. Coombs, 107 Ind. 75. 

In such case it is not error to permit the plaintiff to give in evidence the ordinance, 
advertisements, bids and contracts relating to the building of the sewer, as tending to 
show that the same was constructed by the city ; and it is not necessary for the plaintiff 
to prove that the ordinance directing the construction of the sewer was regularly 
adopted. It is enough to show that the city had assumed to adopt it, and under it had 
constructed the sewer. City of Ft. Wayne v. Coombs, 107 Ind. 75. 

Liability of corporation for torts and on contracts— Sewers.— Municipal corpora- 
tions are not responsible for the torts of their officers, nor for breach of contract, when 
the acts of the officers are beyond the general powers of the corporation ; but they are 
responsible when the acts of the officers are within the general corporate powers, and 
the construction of a public sewer is an act within the scope of the general powers of a 
municipal corporation, and in such case the corporation is liable for the negligence of 
its officers in the construction of a sewer. Leeds v. City of Richmond, 102 Ind. 372. 

Independent contractor— Damag-es.— The general rule is that a municipal corpora- 
tion is not responsible for the negligence of an independent contractor ; but this genei*al 
rule does not apply where the corporation secures a right of way through private prop- 
erty for a sewer and expressly contracts to pay all damages occasioned by construction 
of the same; in such case the miixim respondeat superior applies. Leeds v. City of 
Richmond, 102 Ind. 372. 
CiT. AND To.— 11 



§ 124 CITIES. 162 

Contractor — Trespass upon abutting* land— Damagfes.— When a city confers power 
on persons to construct a sewer along one of its streets, such power does not authorize 
them to go beyond the Hmits of the street and enter upon the abutting premises, nor 
to put earth upon such premises to the inconvenience or injury of the owner thereof, 
and for any such injury the contractors are hable in damages. Kinser v. DeWitt, 7 
App. 597. 

Damag'es— Measure of. — In an action against a city to recover damages resulting 
from the overflow by water several times of the plaintiff's lot and dwelling thereon, 
used by him as a residence for his family, such overflows being caused by an insufficient 
and carelessly constructed sewer built by the city, the jury made up the amount of 
damages by ascertaining the loss suffered by the plaintiff by reason of injury to his 
realty, garden crops and personal property, such as household goods and family sup- 
plies, and adding thereto a certain sum on account of the decrease in the rental value 
of the premises during the period caused by the back water. The damages were ex- 
cessive. City of Indianapolis v. Huffer, 30 Ind. 235. 

Measure of damag'es. — TMiere a stream of Hving water previously flowing freely 
across the plaintiff's lot was so obstructed by the negUgent construction and repair by 
the city of its streets and sewers as to back Avater upon the plaintiff's premises and de- 
stroy his cellar, it was proper to instruct the jury that, if they found for the plaintiff, 
the measure of damages would be the fair rental value of the premises, or such part as 
they found from the evidence the plaintiff had been deprived of, during such time as 
such deprivation necessarily existed ; and that if they found that the value of the prem- 
ises had been permanently diminished, the plaintiff is entitled to compensation there- 
for. City of South Bend v. Paxon, 67 Ind. 228. 

Profits as an element of damag'es. — AYhere an estabhshed business of a permanent 
character, as a mill for the manufacture of grain into meal, hominy or the hke, is sus- 
pended by the overflow, and machinery used therein so injured that in order to make 
repairs a cessation of business is necessary, the net earnings or profits of the present 
and past are competent to be considered by the jury in estimating the owner's damages 
during the period that his business was interrupted. City of Terre Haute v. Hudnut, 
112 Ind. 542. 

Probable profits, not remote or merely speculative, may be admitted in proof, not as 
the measure of damages, but to aid the jury in estimating the damages. Niagara Fire 
Ins. Co. V. Greene, 77 Ind. 590, 594; City of Terre Haute v. Hudnut, 112 Ind. 542. 

All damag'es must be recovered in one action.— All damages, present and prospec- 
tive, caused by the negligence of a municipal corporation in the construction of a public 
work of a permanent character, such as sewers, street improvements and the like, must 
be recovered in one action. A second action can not be maintained. Fresh damages 
without fresh injury will not authorize a second or subsequent action. City of North 
Vernon v. Voegler, 103 Ind. 314; Town of Elkhart v. Ritter, 66 Ind. 136; City of Terre 
Haute V. Hudnut, 112 Ind. 542, 558; Steinke v. Bentley, 6 App. 663; City of Lafayette 
V. Nagle, 113 Ind. 425. 

Successive actions when — Nuisance. — Municipal corporations can not exercise their 
powers in the construction and maintenance of sew^ers so as to create a public or private 
nuisance, and for the creation and maintenance of a nuisance are liable as natural per- 
sons. When the nuisance is a continued one, recovery does not bar subsequent actions, 
every continuance of such nuisance being a fresh injury; but if that which produces 
the injury may be lawfully continued, and can not be abated, it ceases to be a nuisance, 
and there can be but one recovery for damages, present and prospective, and that by 
the owner of the property when the injury occurred. 2 Dillon Munic. Corp., § 1047; 
16 Am. & Eng. Ency., p. 988 n. ; City of Valparaiso v. Moffitt, 12 App. 250 ; Stein v. City 
of Lafayette, 6 App. 414; Steinke v. Bently, 6 App. 663; City of North Vernon v. Voeg- 
ler, 103 Ind. 314; City of Lafayette v. Nagle, 113 Ind. 425; City of Seymour v. Cum- 



163 GOVERNMENT AND POWERS. § 124 

Diins, 119 Ind. 148; Haag v. Board, etc., 60 Ind. 511; City of New Albany v. Lines, 
L»i App. 380. 

Nuisance — Limitation of action. — Where a nuisance is of a character so permanent 
that it may fairly be said that the entire damage accrues in the first instance, the stat- 
ute of limitation begins to run at this time. On the other hand, where the nuisance i& 
a continuing source of injury, there is a continuing right of action. Peck v. City of 
Michigan City, 149 Ind. 670. 

Statute of limitations— Damag-es.— An action for damages by reason of overflow 
water caused by the construction of lateral drains, thereby overtaxing the main ditch 
with water that would naturally flow therein, is not barred by the six-year statute of 
limitations Avhere it does not appear from the complaint that the lateral drains had 
been constructed six years prior to the commencement of the action. City of Lebanon 
V. Twiford, 13 App. 384. 

For construction of the provisions upon^ the subject of sewers of the general act of 
1859, for the incorporation of cities, see Board, etc. v. Silvers, 22 Ind. 491. 

Forty -fourth. To erect a prison or prisons within the limits of said 
city, and it shall be lawful to imprison therein, persons convicted of 
offenses against the laws of such incorporation or for offenses against 
the penal laws of this state and also persons charged with offenses pun- 
ishable by indictment or presentment, temporarily until they can be 
conveniently removed to the county jail. So far as the same may be 
applicable, the laws governing county jails shall be the laws of such 
city prison, and in all cases where the county jail is convenient, it 
may be used for city purposes until a city prison shall be erected. 

See ch. 8, art. 7, Prisons, post, § 1437, et seq. 

Board of prisoner. — A city is liable for the expense of receiving, boarding and dis- 
charging a prisoner convicted of a breach of a provision of its charter or by-laws and 
confined in the county jail. Board, etc., v. Chissom, 7 Ind. 688. 

Forty-fifth. To purchase, hold, or convey real estate for the purpose 
of constructing public buildings thereon, or using the same for a pub- 
lic park or other public purposes. And if designated for a public 
park, cemetery, water works, or fair, such real estate may be pur- 
chased and held by said city, although lying without the limits of the 
corporation, and such city may by ordinance, provide for the protec- 
tion thereof, and access thereto, and for the manner in which, and the 
persons by whom, the same may be used and occupied, and any con- 
veyance heretofore made of real estate to any such city for any of the 
purposes aforesaid, lying without the limits of such city, is hereby 
legalized and confirmed. 

See post, § 132. 

Purchase of real estate— Credit— Bonds.— Conferring on cities the general power, 
without restriction, to purchase real estate for the purpose of constructing buildings 
thereon, gives by implication the exclusive right to determine the expediency of the 
purchase, the power to purchase on credit, and also to issue its negotiable bonds for the 
purchase-money. City of Richmond v. McGirr, 78 Ind. 192. 

A municipal corporation, with authority to purchase property, may issue its bonds in 
payment, unless there is some statutory or constitutional prohibition. Rushville, etc., 
Co. V. City of Rushville, 121 Ind. 206. 



§ 124 CITIES. 164 

A purchase of real estate on credit is not a loan within the meaning of the statute. 
City of Richmond v. McGirr, 78 Ind. 192. 

Oral contract — Eesolution directing' purchase.— A resolution by a common council 
directing the mayor to purchase certain real estate, upon terms stated, the offer to sell being 
by parol, can not be held to be a purchase. An oral acceptance of the terms of the reso- 
lution will not create an enforcible obligation. The resolution of the common council, 
in such case, not having the qualities of a contract, can not be reformed so as to give it 
tlie quality and force of a contract. Carskaddon v. City of South Bend, 141 Ind. 596. 

School property. — A city organized under the general law for the incorporation of 
cities has no power to buy and give its promissory notes for a county seminary, though 
for school purposes in the city. That power belongs to the school corporation of the 
city. State v. City of Terre Haute, 87 Ind. 212. 

Sale of real and personal estate—Implied power.— A municipal corporation pos- 
sesses the incidental or implied right to aUenate or dispose of the property, real or perr 
sonal, of the corporation of a private nature, unless restrained by charter or statute, 
but it can not dispose of property of a public nature in violation of the trust upon which 
it is held. There is a distinction between property purchased for a public use, and not 
yet dedicated, and property purchased for that purpose and actually dedicated to that 
use. City of Ft. Wayne v. Lake Shore, etc., E. Co., 132 Ind. 558 ; Shannon v. O'Boyle, 
51 Ind. 565; City of Terre Haute v. Terre Haute, etc., Co., 94 Ind. 305; O'Boyle v. 
Shannon, 80 Ind. 159; 2 Beach Conts., § 1157. 

Sales of property made by municipal corporations in the exercise of discretionary 
power can not be annulled for the reason that the bargain was improvident. City of 
Terre Haute v. Terre Haute, etc., Co., 94 Ind. 305. 

Proceeding's of conncil— Presumption. — Where the common council by resolution 
accepts a proposition for the sale of property, the regularity of the proceedings by 
which such resolution is adopted will be presumed, and averments showing the particu- 
lar manner of its adoption are unnecessary. Over v. City of Greenfield, 107 Ind. 281 ; 
City of Logansport v. Dykeman, 116 Ind. 15. 

Forty -sixth. To regulate the planting, maintaining and protection of 
shade trees along the streets and in the public grounds, and to compel 
the owners of lots bordering on any street or part thereof, to plant, 
maintain and protect trees, and on failure so to do, to cause the same 
to be done; and the expense thereof shall be a lien on such property, 
and collected in the same manner as street improvements. 

Forty -seventh. The common council of any city may upon a petition 
of a majority of the legal voters of such city sell any public square or 
public landing of such city, or part thereof, and convey the same by 
deed under the hand of the mayor and seal of such city, and any 
moneys arising from such sale shall be deposited in the treasury of 
such city, to be expended in the purchase of any other public square 
or public landing, and for the improvement of the same. 

See 'post, § 135. 

Forty -eighth. To compel the city school trustee or trustees to make 
a report to the common council. 

Forty -ninth. To exempt an amount of real property owned by any 
resident householder of such city, not exceeding three hundred dollars 
in value, from sale for street improvement. 



165 GOVERNMENT AND POWERS. § 125 

Fiftieth. To punish contempts, and contemptuous and disorderly 
demeanor in the council room. 

Fifty-first. To provide on what terms real estate in such city may 
be drained, by means of surface or under drains, over and across 
other real estate therein. [As amended, Acts 1895, p. 180. In force 
June 28, 1895.] Burns' Supp. 1897, § 3541. 

This clause relates to the construction of drains by one land owner over and across 
the lands of another, and not to the constniction of public sewers. Allen v. Jones, 47 
Jnd. 438. 

[Acts 1897, p. 113. In force April 14, 1897.] 

125. Licensing and regulating business by cities. — 1 . That common 
councils of incorporated cities shall have the power to enact and enforce 
ordinances: 

First. To regulate and license clairvoyants, street fakirs and itiner- 
ant dealers. 

Second. To license, tax and regulate vehicles. 

Third. To regulate and control the kind and location of poles used 
b}^ telegraph, telephone, electric light, and street railway companies, 
within the corporate limits of any such city. 

Fourth. To license, tax and regulate branch stores or establishments 
and department stores and all other concerns established in said cities 
for temporar}^ business only. Burns' Supp. 1897, § 3541a. 

The above act is general in its terms, and, perhaps, applies to all the cities of the 
state. 

[Acts 1891, p. 368. In force June 3, 1891.] 

126. Grades of railroad tracks. — 1. That common councils of in- 
corporated cities shall have the power to enforce ordinances to estab- 
lish the grade for railroad tracks on a level with improved streets or 
on streets being improved, and provide a penalty for the violation of 
such ordinance on the refusal of any railroad company to comply with 
its provisions. R. S. 1894, § 3542. 

See post, § 218 note, Kailroads — Street railways. 

Railroad crossing'—Chang'e of grade— Restoration of street.— Wlien a railroad 
company is empowered and ordered by a city ordinance to raise its track at the cross- 
ing of an intersecting street, it is its right and it becomes its duty to do so, but with the 
exercise of this privilege and the discharge of this duty, it must assume the obligation 
imposed by the statute, to restore the street and its sidewalks to their former condition 
of usefulness so far as it can by the exercise of reasonable care and diligence, and fail- 
ing to do so, it is guilty of maintaining a nuisance, and liable to the traveler who, by 
reason thereof, sustains an injury without fault on his part. Cincinnati, etc., R. Co. 
V. Claire, 6 App. 390; Evansville, etc., R. Co. v. Crist, 116 Ind. 446; 3 Elliott Railroads, 
§ 1105. 

Mandate. — A mandate will lie to require a railroad company to make their tracks on 
streets conform to the grade of the streets, and to make the crossings of streets and 
highways over the tracks safe and convenient. Indianapolis, etc., R. Co. v. State, 37 
Ind. 489; Cummins, etc., v. Evansville, etc., R. Co., 115 Ind. 417; 3 Elliott Railroads. 
§ 1096. 

If a railroad company occupying the streets under an ordinance which requires it to 



^ 127 ^ CITIES. 166 

do the grading of the street upon the sides of their tracks fails to do the same, the city 
may do such grading and recover the cost thereof from the company. Indianapolis, 
etc., R. Co. V. City of Lawrenceburg, S-t Ind. 304. 

[Acts 1893, p. 340. In force March 4, 1893.] 

127. Sewer, gas and water conuections. — 1. That the common 
council of any city having a population of less than one hundred 
thousand inhabitants shall have power to enact ordinances to regulate 
the making of private connections with sewers, gas and water pipes, 
and to compel owners of property to bring such connections inside of 
the curb of streets before permanent improvement thereof; and in de- 
fault of the owner making such connections to authorize the city to do 
so at the owner's expense. And to make such expenses a lien on the 
property, and collectible in the same manner as assessments for street 
improvements are now collectible. R. S. 1894, § 3543. 

See ante, § 124, clauses 26 and 43, and post, § 183. 

[Acts 1857, p. 96. In force August 24, 1857.] 

128. Market-houses. — 1. It shall be unlawful for the common 
council of any city in the state of Indiana to erect upon any street of 
any city in said state any market-house, without having first obtained, 
in writing, the consent of two-thirds of all the owners of lots or parts 
of lots on such street, opposite to the place whereon such market- 
house is proposed to be constructed. R. S. 1894, § 3544. 

129. Market-houses. — 2. It shall be unlawful for such common 
council to maintain any market-house which now is or may be erected 
upon any street of any city in this state, without the written consent 
of two-thirds of all owners of the lots or parts of lots opposite the place 
where the same is erected. R. S. 1894, § 3545. 

130. Market-houses— Nuisance. — 3. Every market-house so erected 
or maintained without such consent of two-thirds of all the owners of 
the lots or parts of lots opposite to such market-house is hereby de- 
clared a nuisance ; and it shall be the duty of the common council of 
the city where such market-house is so erected to abate and remove the 
same ; and if such common council shall fail to remove it, it shall be 
lawful for any owner of a lot or part of a lot opposite to such market- 
house, to abate and remove the same, and he may, by proper action, 
recover of and from such common council the amount of money ex- 
pended by him in and about the abatement and removal of the same. 
R. S. 1894, § 3546. 

Market g"rounds— Improvement. — The city council has no Jurisdiction to improve 
the property of the city, held and used for market purposes, at the expense of the own- 
ers of adjoining lots. City of Ft. Wayne v. Shoaff, 106 Ind. 66. 

The city has no power to establish markets upon the public streets. The abutting 
property owner may enjoin the use of the public streets for such purpose. City of Rich- 
mond V. Smith, 148 Ind. 294. 



167 GOVERNMENT AND POWERS. § 131 

[Acts 1881 S., p. 103. In force April 6, 1881.] 

131. Pipes for heating, etc. — 1. The incorporated cities of this 
state are authorized, by ordinance or contract, to grant to any person or 
corporation the right to lay down pipes in their streets, lanes, alleys, 
thoroughfares, and public grounds, for the purpose of supplying the 
inhabitants thereof with steam, gas, or water for heating and motive 
power. R. S. 1894, § 3547. 

See ante, § 124, clause 28, and j3osf, § 1136. 

[Acts 1873, p. 62, In force March 7, 1873.] 

132. Selling real estate. — 1. Any city or cities incorporated un- 
der any general law of this state for the incorporation of cities, and 
owning real estate, shall have power to alienate, sell and convey such 
real estate in whole or in parcels, as the common councils of such city 
or cities may deem expedient. R. S. 1894, § 3548. 

See ante, § 124, clause 45. 

133. Yote necessary — Deed. — 2. Such alienation, sale, and con- 
ve3^ance shall be made by the common council of such city or cities 
by a vote of two-thirds of all the members of such common council. 
When any alienation and sale shall be made by such common council, 
they shall order and direct the mayor of such city to execute and de- 
liver a deed of conveyance to the purchaser, which shall be in the 
usual form, and shall be executed in the name of such city and signed 
by the mayor in his official capacity, and sealed with the seal of the 
city; and, when thus executed, acknowledged, and delivered, shall 
convey all the right, title, and interest of the city in and to the prem- 
ises so conveyed. R. S. 1894, § 3549. 

134. Appraisement. — 3. No such property shall be sold until the 
same has been appraised by three disinterested freeholders of such 
city, to be appointed by the judge of the circuit court of the county in 
which such city may be situated, neither of whom shall be members 
of the city council or officers or employes of such city. Said appraisers 
shall be first sworn to make a just and true valuation of such prop- 
erty, and shall return their appraisement, in writing, to the mayor or 
common council of such city; and no such property shall be sold for 
less than the full appraised value thereof. R. S. 1894, § 3550. 

Sales and conveyances of real estate by cities, where such sales and conveyances 
were made upon a majority vote of the common council, and without appraisement, 
were legalized and made valid by act of 1885, Acts 1885, p. 108. 

Sale of real estate— Implied power.— A municipal corporation possesses the in- 
cidental or implied right to alienate or dispose of the property, real o.r personal, of the 
corporation, of a private nature, unless restrained by charter or statute, but it can not 
dispose of property of a public nature in violation of the trust upon which it is held. 
There is a distinction between property purchased for a public use, and not yet dedi- 
cated, and property purchased for that purpose and actually dedicated to that use. City 
of Ft. Wayne v. Lake Shore, etc., R. Co., 132 Ind. 558; Shannon v. O'Boyle, 51 Ind. 
565; City of Terre Haute v. Terre Haute, etc., Co., 94 Ind. 305; O'Boyle v. Shannon, SO 
Ind. 159 ; 2 Beach Conts., § 1157. 



§ 135 CITIES. 168 

[Acts 1895, p. 151. In force March 7, 1895.] 

135. Conveyance of public grounds. — 1. That any city in this state 
having a population of more than two thousand and less than two 
thousand two hundred as shown by the United States census of 1890, 
may by vote of a majority of the common council of such city grant 
and convey to any corporation or body politic, any public square, 
market square, market place, fractional piece of ground, or public 
park owned or held by such city or within its corporate limits, to be 
held by such city or within its corporate limits, to be held by such 
corporation or body politic and devoted for any public purpose. Burns' 
Supp. 1897, § 35415. 

See mite, § 124, clause 47. 

136. Deed, how executed — Title conveyed. — 2. Whenever a reso- 
lution directing such grant and conveyance shall be passed by a 
majority vote of the common council of such city, it shall be the duty 
of the mayor of such city to at once make and execute to the corpora- 
tion or body politic named in said resolution a deed conveying the 
market square, public square, market place, fractional piece of ground, 
or public park, and such deed shall vest in such corporation or body 
politic full and complete title to said real estate together with all the 
buildings and structures thereon. Burns' Supp. 1897, § 354ic. 

[Acts 1885, p. 94. In force March 17, 1885.] 

137. Real estate for sanitary purposes. — 1. That it shall be lawful 
for incorporated cities in this state to purchase and hold real estate 
without the limits thereof for sanitary purposes; and any conveyance 
heretofore made of real estate to any such city for any such purpose, 
within or without the limits of any such city, together with any and 
all bonds and obligations issued in payment therefor, or to raise 
revenue with which to pay therefor, are hereby legalized. R. S. 1894, 
§ 3551. 

[Acts 1873, p. 63. In force March 7, 1873.] 

138. Water-works. — 1. The common council of any city engaged 
in establishing and constructing water-works for furnishing such city 
with wholesome water, may, by a vote of two-thirds of the members 
of such council, at any regular or adjourned meeting thereof , issue the 
bonds of such city, payable at such times as the common council may 
direct, and bearing interest at any rate not exceeding ten per cent., 
and may negotiate the same upon the best terms they can obtain, not 
less than ninety-seven cents on the dollar; and the proceeds of such 
bonds shall be applied only to the construction of said water-works. 
R. S. 1894, § 3552. 

See § 124, ante, clauses 26 and 43 ; also §§ 1061-1089, post. 
Water-works companies, powers, etc., see § 1377, post. 

Under clause 26 of § 53 of the general law for the incorporation of cities (ante, § 124, clause 
26), the common councils of cities have no authority to issue, negotiate and sell bonds 



169 GOVERNMENT AND POWERS. § 139 

for the purpose of obtaining money to construct water- works. State v. Hauser, 63 Ind. 
155. 

Bonds for construction of water- works. — Where a city negotiated bonds to raise 
money to construct water- works, and the city treasurer misapplied a part of the funds 
so reahzed, leaving debts unpaid on account of such works, it was competent for the 
city council to issue and sell other bonds to make up such deficiency, and to provide for 
pajmient of ten per cent, interest thereon. Daily v. City of Columbus, 49 Ind. 169. 

The sole power to sell and negotiate bonds of a city for water-works purposes rests in 
the city council. It may employ an agent to act for it. State v. Hauser, 63 Ind. 155. 

[Acts 1867, p. 83. In force March 14, 1867.] 

139. Infirmary for poor. — 55. The city council shall have power 
to erect, establish, maintain, and regulate an infirmary for the accom- 
modation of the poor of said city, either within the limits of such city 
or within the county in which it may be situated; and, for such pur- 
pose may purchase and hold any real estate that may be deemed nec- 
essary. The management and government of any such infirmary, 
and the quantity of out-door relief to the poor, under such rules and 
regulations as the council may prescribe, may be vested in a board of 
three directors, to be elected by the cit}^ council, who shall hold their 
office for the term of three years; but it shall be so provided that one 
of said directors shall be elected annually. The city council may elect, 
or the said directors shall appoint, an overseer in each ward, who 
shall perform such duties in respect to the care of the poor and their 
removal to said infirmary, as the council may prescribe. R. S. 1894, 
§ 3553. 

[Acts 1873, p. 64. In force March 10, 1873.] 

MO. Large cities may borrow money. — 1. Any incorporated city 
of this state containing a population of fifteen thousand or over, may 
borrow money to an amount not exceeding two per cent, of the taxable 
property of such city, as the same shall appear upon the tax duplicates 
of such city for the year in which such loan may be effected: And 
provided, That the entire money borrowed shall not, at any time, ex- 
ceed two per cent, of the taxable property of such city. R. S. 1894, 
§ 3554. 

See constitutional limitation, ante, § 39 and notes. 

141. Purpose of loan. — 2. Such loans shall be made only for the 
purpose of procuring money to be used in the legitimate exercise of 
the corporate powers of such city, as the same are prescribed and de- 
fined in laws providing for the incorporation and government of cities: 
And provided, That nothing in this act contained shall be in any wise 
construed as authorizing any city to contract any debt or liability for 
any other than a legitimate corporate purpose; but such loans may be 
made to procure money to pay debts already contracted in the due ex- 
ercise of corporate powers conferred bv the laws of the state. R. 8. 
1894, § 3555. 

142. Ordinance for loan. — 3. The city assessor, city clerk, and city 



§143 CITIES. 170 

treasurer shall, before any such bonds are ordered to be issued, join 
in an aiOSdavit, stating therein the total value of the taxable property 
of such city, as shown by the tax duplicate, and also the fair valua- 
tion thereof, which affidavits shall be reported by the city clerk to the 
common council of such city. The common council shall thereupon 
cause an ordinance to be introduced providing for such loan, and the 
said ordinance shall be, thereupon, referred to such committee as the 
common council may deem proper, and said committee of such coun- 
cil shall, at the next regular meeting of such common council, report 
such ordinance to the common council, with such recommendations 
as they may deem expedient. If the common council determine, by 
a two-thirds vote of all the members thereof, to make such loan 
(w^hich determination shall be evidenced by the passage of such 
ordinance), the mayor of such city shall order and direct the requisite 
number of blank bonds to be prepared, and these he shall sign and 
deliver to the city clerk, taking his receipt therefor, and the city clerk 
shall countersign the same, and attach the corporate seal thereto, and 
deliver them to the city treasurer, and shall take from such treasurer 
a receipt for such bonds, and in such receipt shall be particularly de- 
scribed the said bonds as to date, number, amount and time of pay- 
ment. The bonds so received by such treasurer shall be, by him, 
safely kept; and, at the next meeting of the common council, he shall 
report the receipt thereof to that body. Upon the report of such 
treasurer, the common council ma}^ authorize a committee thereof to 
negotiate a sale of said bonds, of which committee the treasurer shall 
be a member, and all moneys received from the sale of such bonds 
shall be, by such treasurer, received and kept, to be paid out under 
the order and direction of the common council as money derived from 
other sources is directed by law to be paid out. And such treasurer 
shall, in a proper book, register said bonds, note the day of sale 
thereof, the moneys realized therefrom, and, at all times, keep a plain, 
correct, and fair account of such transaction, so that the same may be 
readily understood; and shall, at all times, keep the same open and 
accessible to the public. It shall be the duty of the treasurer, within 
one week after the negotiation of such bonds, to report the same to 
the common council, stating all the particulars of such transaction; 
which report the said treasurer shall duly verify by oath or affirma- 
tion. The said treasurer shall faithfully pay over and account for all 
moneys by him received from the sale of such bonds. R. S. 1894, 
§ 3556. 

143. Interest — Sale of bonds. — 4. The common council may pro- 
vide the rate of interest, not exceeding 10 per cent, per annum, which 
said bonds shall bear, and may prescribe the time and manner in 
which said bonds and interest may be payable: Provided, That no 
bonds shall be issued payable at a period of more than twenty years: 
And provided, That at no time shall there be outstanding of such 
bonds an amount in excess of 2 per cent, of the taxable property of 
such city. The common council shall have power to dispose of said 



171 GOVERNMENT AND POWEKS. § 14 



bonds as hereinbefore provided; but the same shall in no case be sold 
at less than par. The committee of the common council appointed to 
sell said bonds, as hereinbefore provided, shall, upon the sale thereof , 
report to the common council the date of sale, the amount sold for, 
and the disposition of the proceeds of such sale or sales. The commit- 
tee shall cause a publication to be made, for such time as they may 
deem proper, in a newspaper of general circulation, inviting proposals 
for such bonds, and shall sell the same to the highest and best bidder, 
provided the same shall not be sold at a less rate than that hereinbe- 
fore prescribed. R. S. 1894, § 3557. 

Bonds for school buildings, see post, § 1518, et seq. 

Bonds — Anthority to issue — When valid and void. — A municipal corporation can 
not issue and sell bonds unless expressly or impliedly authorized so to do by statute. 
2 Beach Conts., § 1175; State v. Hauser, 63 Ind. 155; Brenham v. German, etc., Bank, 

144 V. S. 173. 

A municipal corporation with authority to purchase property may issue its bonds 
in payment, unless there is some statutory or constitutional prohibition. Rushville, 
etc., Co. V. City of Rushville, 121 Ind. 206; Miller v. Board, 66 Ind. 162. 

But see, as to implied power to issue bonds, 2 Beach Pub. Corp., § 884, et seq. 

"WTien bonds bear reference on their face to the authority under which they are 
issued, all persons are bound to take notice of the extent of the powers of the agent 
who issued them. City of Aurora v. West, 22 Ind. 88; Myers v. City of Jeffersonville, 

145 Ind. 431. 

A municipal corporation can not, without special authority, subscribe stock and issue 
bonds in payment of it, in a railroad corporation. But such authority may be conferred 
upon a city, when it is expedient ; and when it is given by statute in any case, it must be 
executed, as prescribed in the grant, if executed at all. The terms of the grant can not 
be legally departed from or exceeded. Bonds issued without authority are void as to 
all persons. City of Aurora v. West, 22 Ind. 88. 

Cities may be authorized by statute to take stock in corporations organized for the 
purpose of constructing works of public benefit and to issue bonds for such stock. Such 
statutes are strictly construed. City of Aurora v. West, 9 Ind. 74; Thompson v. City 
of Peru, 29 Ind. 305; City of Mt. Vernon v. Hovey, 52 Ind. 563; Mayor, etc., v. State, 
57 Ind. 152; Indiana, etc., R. Co. v. City of Attica, 56 Ind. 476. 

Bonds — Commercial paper. — Bonds of a municipal corporation duly issued under 
authority of law, payable to bearer for definite sums of money at specified times, are 
regarded as commercial paper, and are governed by the law merchant. City of Bloom- 
ington V. Smith, 123 Ind. 41; Board, etc., v. Bright, 18 Ind. 93; New Albany, etc., Co. 
V. Smith, 23 Ind. 353; Gardner v. Haney, 86 Ind. 17; City of Mt. Vernon v. Hovey, 52 
Ind. 563; City of Aurora v. West, 22 Ind. 88; Myers v. City of Jeffersonville, 145 Ind. 
431; Hainer's Munic. Securities, §§251, 254, 258. 

Recovery upon lost bonds— Indemnity.— Recovery may be had upon bonds shown 
to have been lost before maturity, and while they were held and owned by the plaintiff, 
and when an offer is made by the plaintiff to indemnify the city against loss on account 
of the inability of the plaintiff to present or return the bonds for cancellation, and an 
approved bond is brought into court for the indemnity of the city. City of Blooming- 
ton v. Smith, 123 Ind. 41. 

Injunction. — A citizen and tax-payer of a city may prevent, by injunction, the city 
authorities from illegally issuing negotiable bonds, and where they have been issued, 
and remain in the hands of the one who received them with notice, may maintain a 
suit to restrain their transfer and to cancel them. City of Madison v. Smith, 83 Ind. 
502 ; Mayor v. Smith, 57 Ind. 152 ; State v. Mayor, 108 Ind. 74; 2 Elliott Railroads. §§ 850, 
863, 874, 917; 2 Beach Conts., § 1171. 



§ 143 CITIES. 172 

V>Tien bonds have been issued by a city, and a tax levied to pay the same, payment 
can not be enjoined unless it is shown that the city has a valid defense to the bonds in 
the hands of the present owners. Wilkinson v. City of Peru, 61 Ind. 1. 

The collection of the tax may be enjoined when the bonds are void. Wilcoxon v. 
City of Bluffton, Ind. Sup. Ct., June 14, 1899. 

NefifOtiable bonds. — Municipal bonds, when negotiable, coming into the hands of an 
innocent purchaser for value, without notice of infirmities, may be transferred by such 
innocent holder to another who has notice of such infirmities, and the bonds will not 
be subject to defense on account of such infirmities. A^^lenever negotiable paper has 
passed into the hands of a party unaffected by previous infirmities its character as an 
available security is established and its holder can transfer it to others with immunity. 
Scotland County v. Hill, 132 U. S. 107; Cromwell v. County of Sac, 96 U. S. 51. 

Express and implied power — Statute strictly construed — Taxes. — Bonds of a 
municipal corporation are void unless there be express or implied authority to issue 
them. Cofian v. City of Indianapolis, 59 Fed. Eep. 227 ; Barnett v. Denison, 145 U. S. 
135; Wells v. Supervisors, 102 TJ. S. 625; Claiborne County v. Brooks, 111 U. S. 400; 
Concord v. Robinson, 121 U. S. 165; Kelly v. Milan, 127 TJ. S. 139; Hopper v. Coving- 
ton, 118 U. S. 148; Hill v. Memphis, 134 U. S. 198; Hainer's Munic. Securities, 
§409. 

The provisions of the statute authorizing them must be strictly pursued ; the pur- 
chaser or holder of such bonds is chargeable with notice of the requirements of the law 
under which they are issued. Barnett v. Denison, 145 U. S. 135; Ogden v. County of 
Da\dess, 102 U. S. 634; South Ottawa v. Perkins, 94 U. S. 260; Coler v. Cleburne, 131 
V. S. 162; 2 Beach Conts., § 1175. 

Where a statute requires that the bonds issued shall express upon their face the pur- 
pose for which they are issued, and bonds are issued mthout any purpose appearing at 
all upon their face, a purchaser will take them at the risk of their being issued for an 
illegal purpose, and, if that prove to be the case, they are as void in his hands as if he 
had received them with express notice of their illegality. Barnett v. Denison, 145 IT. S. 
135. 

AAHien authority is granted by the legislative branch of the government to a munici- 
pality, or a subdivision of a state, to contract an extraordinary debt by the issue of ne- 
gotiable securities, the power to levy taxes suihcient to meet, at m^aturity, the obligation 
to be incurred, is conclusively implied, unless the law which confers the authority, or 
some general law in force at the time, clearly manifests a contrary legislative intention. 
Ralls County v. United States, 105 U. S. 733; Scotland County Court v. Hill, 140 
V. S. 41. 

A general law which limits the annual tax levy for general expenses to a certain per 
centum on the taxable property does not apply to such extraordinary debt. Ralls 
County Court v. United States, 105 U. S. 733. 

Effect of recitals in bonds. — "^^Tiere a statute confers power upon a municipal corpo- 
ration, upon the performance of certain precedent conditions, to execute bonds in aid 
of the construction of a railroad, or for other like purposes, and imposes upon certain 
officers (invested w^ith authority to determine whether such conditions have been per- 
formed) the responsibility of issuing them when such conditions have been complied 
with, recitals by such officers that the bonds have been issued "in pursuance of," or 
"in confoiToity with," or by "virtue of," or "by authority of," the statute, as to bona 
fide purchasers for value, import full compliance with the statute, and preclude inquiry 
as to whether precedent conditions had been performed before the bonds were issued. 
City of Evansville v. Dennett, 161 U. S. 434; Town of Coloma v. Eaves, 92 U. S. 484; 
Commissioners v. Bolles, 94 U. S. 104; Mercer Co. v. Hacket, 1 Wall. 83 ; Commission- 
ers V. Beal, 113 U. S. 227; Cairo v. Zane, 149 U. S. 122; Van Hostrup v. Madison City, 
1 Wall. 291; Moulton v. City of Evansville, 25 Fed. Rep. 382; Livingston County v. 
Portsmouth Bank, 128 U. S. 102; Town of Pana v. Bowler, 107 U. S. 529; City of South 
St. Paul V. Lamprecht Bros. Co., 88 Fed. Rep. 449- Hainer's Munic. Securities, §§ 428, 
429 and cases; 2 Beach Cents., § 1173, et seq. 



173 GOVERNMENT AND POWERS. § 144 

When municipal bonds recite facts which, if true, show that tliey were issued upon 
the conditions and for a purpose authorized by law, the bona fide purchaser, without 
any notice of any infirmity therein, may safely rely upon such recitals. Waite v. City 
of Santa Cruz, 89 Fed. Rep. 619. 

If a municipal corporation make a false certificate on the face of its negotiable bonds, 
or a false record that they Avere issued in accordance with the law for a lawful purpose, 
it is estopped to deny the validity of the bonds in the hands of an innocent purchaser, 
who has bought in reliance upon the certificate or record. Board, etc., v. ^Etna, etc., 
Co., 90 Fed. Eep. 222. 

But if the recitals are made by officers, and it is not within the general scope of the 
authority of such officers to determine whether or not the particular conditions have 
been complied with, the recitals will not estop the city from pleading the invalidity of 
the bonds. Hainer's Munic. Securities, § 436 and cases ; 2 Elliott Railroads, §§ 900, 902. 

A purchaser of municipal bonds is bound to ascertain if the municipality has au- 
thority to issue them, and no recital contained in a municipal bond can cure such a 
defect as an utter want of power in the municipality to execute it. Dixon Co. v. Field, 
111 U. S. 83; Town of Coloma v. Eaves, 92 U. S. 484; Coffin v. Board, etc., 57 Fed. 
Rep. 137; Katzenberger v. Aberdeen, 121 U. S. 172; Myers v. City of Jeffersonville, 
145 Ind. 431, 437; Hainer's Munic. Securities, §§ 399,,409. 

Constitutional limitation. — Where the constitution of the state limits the amount of 
indebtedness which may be incurred by a municipal corporation, it is not within the 
power of the legislature to dispense wdth such limitation, either directly or indirectly. 
Hainer's Munic. Securities, §§ 37, 38, 418. See ante, § 39 and cases. 

Void bonds leg"alized— Recovery of consideration.— Where a city issues and sells 
bonds without authority of law, and receives the consideration therefor, the money 
received may be recovered, in a proper action, though an action upon the bonds, be- 
cause of their invalidity, can not be maintained, and bonds thus issued, where the 
city has received and enjoyed the proceeds, may be legalized by subsequent act of the 
legislature. Read v. City of Plattsmouth, 107 U. S. 568 ; New Orleans v. Clark, 95 U. S. 
644; Louisiana v. Wood, 102 U. S. 294; 2 Elliott Railroads, § 911. 

But there can be no recovery of the consideration paid for the bonds when their issue 
was forbidden by law. Litchfield v. Ballou, 114 U. S. 190; 2 Elliott Railroads, § 912. 

Bona fide holders— When void in hands of— Irregularities— Power.— Where mu- 
nicipal bonds have passed into the hands of bona fide holders (that is, holders for value, 
without notice of mere irregularities in the exercise of existing power to execute the 
bonds), they hold them as other commercial paper, and subject to no defense by reason 
of such irregularities. But where there is an absence of power to execute the bonds 
they are void, and subject to defense in the hands of whomsoever they may come. 
jMyers v. City of Jeffersonville, 145 Ind. 431. 

Absence of power. — Even a bona fide holder of a municipal bond is bound to show 
legislative authority in the issuing body to create the bond. Recitals on the face of the 
bond, or acts in pais operating by way of estoppel, may cure irregularities in the execu- 
tion of statutory power, but they can not create it. If legislative authority is wanting, 
the bond has no validity. Hayes v. Holly Springs, 114 U. S. 120; Myers v. City of Jef- 
fersonville, 145 Ind. 431; Schneck v. City of Jeffersonville, Ind. Sup. Ct., Dec. 20, 1898. 

Municipal corporations having power to issue bonds may attach coupons thereto for 
accruing interest, and such coupons constitute a part of the contract, and may consti- 
tute a cause of action when due. Town of Cicero v. Clifford, 53 Ind. 191. 

[Acts 1877, p. 14. In force February 13, 1877.] 
144. Large cities — Funding bonds. — 1. Where the aggregate in- 
debtedness of any city in this state having a voting population of over 
sixteen thousand, as shown by the votes cast for governor at the last 
preceding election, amounts to or exceeds, at the date of the passage 



§ 145 CITIES. 174 

of this act, 2 per cent, upon the total of the taxables upon the city tax 
duplicate for the current year, it shall be lawful for the common coun- 
cil of any such city, on or after May 1, 1877, to fund so much of said 
indebtedness as may be outstanding on said first day of May, 1877 
(whether such indebtedness be then due or is thereafter to become 
due), in the bonds of such city, drawing not exceeding 6 per cent, 
per annum interest, pa3^able semi-annually, at such place and time as 
the common council of said city may, by ordinance, provide; which 
bonds such commoii council is hereby authorized to issue: Provided, 
however, That such funding bonds shall be used only in taking up and 
canceling warrants and bonds of such city, previously issued to credi- 
tors, or sold and delivered, as may be outstanding on said first day of 
May, 1877. And to that end it shall be the duty of the common 
council to cause a full and complete statement to be made of the said 
bonds and warrants outstanding at that date ; which statement shall 
be signed by the mayor, treasurer and clerk, and be spread on the 
record of the proceedings of the council, and published in one or more 
newspapers in such cit}^; and the aggregate of the funding bonds issued 
shall not exceed the amount of such indebtedness outstanding on said 
first day of May, 1877. And whosoever shall issue, or aid or abet in 
issuing, bonds exceeding in amount the amount herein authorized, or 
shall apply, aid, or abet in applying the same to an}^ other purpose 
than the purposes herein authorized, shall be deemed guilty of a felony, 
and shall be punished by imprisonment in the state prison not less 
than one nor exceeding ten years, and be fined in any sum less than 
ten thousand dollars; and if he be an ofiicer of such city, suit may 
also be brought upon his official bond for the amount issued or misap- 
plied contrary to the provisions of this act. R. S. 1894, § 3558. 

Funding bonds, sinking fund, see post, § 1001 , et seq. 

Eef unding' bonds create no new debt. — The issuing of new bonds to provide, at 
their par value, for the payment of an old debt, or the substitution of new evidence of 
a pre-existing debt, is not, in any legal or proper sense, the creation of a new indebted- 
ness. Powell V. City of Madison, 107 Ind. 106; Bowlusv. Phenix Insurance Co., 133 
Ind. 106, 114; Myers v. City of Jeffersonville, 145 Ind. 431. 

145. Limit of debt. — 2. When the aggregate indebtedness, funded 
or otherwise, of any city of this state having a voting population of 
over sixteen thousand, as shown by the vote cast for governor at the 
last preceding election, amounts to or exceeds two per cent, upon the 
taxables borne upon the city tax duplicate for the current year, it shall 
not be lawful to increase such indebtedness in any manner or form 
v\'hatever, except only by temporary loans in anticipation of the rev- 
enue of the then current year, and not exceeding two-thirds of the 
amount of the city tax duplicate for the preceding year, payable out 
of said revenue and within the current year; and no temporary or 
other loan upon the revenue of any year thereafter shall be made until 
all temporary loans upon the revenue of any preceding year have been 
fully paid; and any ordinance or resolution, warrant, certificate, obli- 
gation, note, contract, or other evidence of indebtedness, by whomso- 



175 GOVERNMENT AND POWERS. § 146 

ever made, or in whatsoever form, to increase the indebtedness of any 
such city, except as herein provided, shall be absolutely null and void. 
R. S. 1894, § 3559. 

See constitutional limitation, ante, § 39 and notes. 

Constitutional and statutory limitations disting-uished.—The rule which applies to a 
constitutional limitation is not usually applicable when the limitation is only statutory. 
WTien the limitations are imposed by the constitution it may not be within the power 
of the legislature to dispense with them by the creation of a ministerial commission 
whose findings shall be taken in lieu of the facts ; but when the limitations are imposed 
by the statute only, the legislature, being the source of the limitation, may create a 
board authorized to determine the questions of fact upon which the limitation depends, 
and its findings will be conclusive in favor of bona fide purchasers of bonds. Chilton 
V. Town of Gratton, 82 Fed. Rep. 873; Sherman Co. v. Simons, 109 U. S. 735; Lake Co. 
V. Graham, 130 U. S. 674. 

When the limit of issue under the statute is to be ascertained from records or data 
which are peculiarly within the knowledge and control of the officers of the munici- 
pality, then the bonds will be valid in the hands of a bona fide holder. Chilton v. 
Town of Gratton, 82 Fed. Rep. 873. 

146. Limit of tax levy. — 3. It shall not be lawful for the common 
council of any city in this state having a voting population of over 
sixteen thousand, as shown by the votes cast for governor at the last 
preceding election, to levy and assess a tax, for any one year, exceed- 
ing, in the aggregate, ninety cents upon the hundred dollars returned 
for taxation upon the city tax duplicate for the current year; and it 
shall not be lawful for the board of school commissioners of any such 
city to levy or assess taxes for any one year exceeding, in the aggre- 
gate, twenty cents on the hundred dollars of property returned upon 
the city tax duplicate for the current year: Provided, however, In ad- 
dition to the sum of twenty cents aforesaid, said board of school com- 
missioners may levy a tax, each year, for the support of free libraries, 
as now provided by sub-section 3 of section 4 [R.S.1894, § 5939] of an act 
providing for a general system of public schools in all cities of thirty 
thousand or more inhabitants, and for the election of a board of school 
commissioners of such cities, and defining their duties and prescrib- 
ing their powers, and providing for common school libraries within 
such cities, approved March 3, 1871. And so much of any law as re- 
quires the levy of a tax by the common council for a sinking fund is 
hereby repealed as to such city; and any money in the city treasury of 
such city, on account of such sinking fund, may be appropriated by 
the city council for general city purposes. R. S. 1894, § 3560. 

See post, §§ 201, 203, et seq., and 214, et seq. 

Funding bonds and sinking fund, see post, § 1001, et seq. 

[Acts 1877, p. 14. In force February 13, 1877.] 

147. Orders forbidden. — 4. No warrant or order for money shall 
be drawn upon the treasurer of any such city after May 1, 1877, if at 
the time there be no money in the treasury; and, to that end, it shall 
be the duty of the city treasurer to keep the clerk, auditor, or other 



§ 148 CITIES. 176 

officer authorized to draw orders or warrants, informed when there is 
no money in the treasury; and, failing to do so, he shall be liable, on 
his official bond, for the amount of orders or warrants drawn during 
such failure, with interest thereon, to the person in whose favor such 
order or warrant was drawn. If the clerk, auditor, or other person 
authorized to draw orders or warrants upon the treasurer, shall draw 
any order or warrant upon the treasurer, knowing there is no money 
in the treasury, he shall be liable, on his official bond, for the amount, 
with interest thereon, to the person to whom such order or warrant 
was made payable. R. S. 1894, § 3561. 

148. Appropriations forbidden. — 5. It shall not be lawful for the 
common council of any such city, after May 1, 1877, to make any ap- 
propriation of money, unless, at the time of making such appropria- 
tion, the money be in the treasury with which to pay the same. R. S. 
1894, § 3562. 

[Acts 1889, p. 82. In force February 23, 1889.] 

M9. Sinking fund commissioners. — 1. That in all cases where 
any city organized and incorporated under the general laws of the state 
of Indiana, and having a population of ten thousand or more inhabi- 
tants, shall be indebted to the amount of one hundred thousand dol- 
lars, or more, evidenced by the bonds of such city, there may be 
appointed in the manner hereinafter provided two commissioners who 
shall be known and designated as the ''sinking fund commissioners.'' 
R. S. 1894, § 3563. 

150. Politics of commissioners — Election— Oatk — Bond. — 2. Such 
commissioners shall be of opposite politics, and shall be selected from 
the two political parties casting the greatest number of votes at the 
last preceding general election for state and county officers. Said 
commissioners shall be elected by the common council of said city, 
and before entering upon the discharge of the duties of their office 
they shall severally execute bond to the state of Indiana with at least 
two sufficient freehold sureties to the satisfaction of the judge of the 
circuit court of the county in which such city is situated, in a penalty 
of one hundred thousand dollars conditioned for the faithful and 
honest discharge of their duties, and the accounting for all such sums 
of money and property that may come into their hands; and in case 
the bonds or other negotiable instruments or money in excess of one 
hundred thousand dollars are to come into their hands during their 
term of office, before the reception thereof, they shall be required by 
said common council to file an additional bond in a penalty of double 
the amount of such additional property with sureties and conditions 
as aforesaid, to the approval of such judge. 

They shall take an oath to faithfully and honestly discharge the 
duties of their trust, and to faithfully and honestly account for and 
pay over to the person or persons, officer or officers, entitled thereto. 



177 GOVERNMENT AND POWERS. § 151 

all the money which may come into their hands as such commission- 
ers, and their oath shall be endorsed on the certificate of their appoint- 
ment, such bond and oath shall be filed in the office of the county 
clerk and such bond shall be recorded in the order book of said court. 
Such commissioners shall hold their respective offices for a term of 
four years unless sooner removed by the order of the court having 
jurisdiction in that behalf. [As amended, Acts 1895, p. 15. In 
force February 16, 1895.] Burns' Supp. 1897, § 3564. 

151. Treasui-er's duties — Disposition of funds. — 3. It shall be the 
duty of the city treasurer at the end of each calendar month to furnish 
to the said commissioners a statement in writing, verified by his affi- 
davit, showing the whole amount of taxes collected by him during the 
preceding month, and the proportion thereof collected on account of 
the sinking fund for the redemption and payment of all the outstand- 
ing bonds of the city, and also the amount collected by him on ac- 
count of the fund for the payment of the interest on such bonds, and 
the treasurer shall, at the time of rendering such statement, pay over 
to the commissioners the full amounts so collected by him on account 
of each of said funds. The said funds and moneys so received by 
the said commissioners shall on the day they are received by such 
commissioners be deposited by them in two or more national banks in 
the city owing the bonds, such deposits to be made in the joint names 
of such commissioners in their official character, and not otherwise, 
and no check or draft shall be paid by such banks out of said funds 
unless signed by each and both of said commissioners. If any in- 
terest or other compensation shall be allowed or paid, directly or in- 
directly, by any bank or banks for or on account of such deposit, such 
interest or compensation shall constitute a part of such trust funds, 
and in no event shall such commissioners receive or derive any profit 
or advantage from such fund or deposits. R. S. 1894, § 3565. 

152. Statement to be publislied. — 4. It shall be the duty of said 
commissioners to publish in a daily newspaper of general circulation 
in the city where they are appointed, on the last Monday in June and 
the last Monday in December of each year, a statement and report of 
the amount of money in their hands as such commissioners, and the 
objects to which the same is to be applied, which statement and re- 
port shall be verified by their affidavit, and one copy thereof shall be 
forthv/ith filed in the office of the city clerk, and by him recorded in 
the minutes of the proceedings of the common council, and one copy 
of such statement and report shall by such commissioners be filed 
with the clerk of the circuit court. R. S. 1894, § 3566. 

153. Interest — Use of funds — Penalty for misapplication. — 5. It 
shall be the duty of such commissioners to pay out of the funds in 
their hands, collected on account of interest on the indebtedness of 
such city, the interest on the bonds of such city as the same becomes 
due and payable, and as the bonds mature, the said commissioners 
shall pay them out of the fund provided for that purpose, and held 
by them. No part of the fund collected for the payment of interest 
on the bonds shall be used for the payment of the principal sum of 

CiT. AND To.— 12 



§ 154 CITIES. 178 

any bond or bonds, and no part of the funds collected for the redemp- 
tion or payment of the principal of such bonds shall ever be used for 
the payment of interest on such bonds: Provided, however, That when- 
ever the funds which shall come into the hands of said sinking fund 
commissioners for the payment and redemption of the principal of 
such bonds shall amount to the sum of $5,000, it shall be the duty of 
such sinking fund commissioners to purchase such bonds of the hold- 
ers thereof at the best cash price for which they may be able to obtain 
the same, not in excess of the market price thereof, but no such pur- 
chase shall be made without the approval of the common council, and 
said commissioners shall, in case they are compelled to purchase said 
bonds at a premium, pay said premium out of the funds in their hands 
for the redemption of the principal or the funds in their hands for the 
payment of the interest thereon, at the discretion of such sinking 
fund commissioners. For any misapplication or diversion of any 
moneys coming to their hands, the said commissioners shall be liable 
upon their bonds, and the judgment in every such action shall, in ad- 
dition to the principal sum recovered, include a penalty of ten per 
cent, on such sum and an attorney's fee of ten percent, on such prin- 
cipal sum and penalty. Any person or persons aggrieved by the mis- 
application or diverson of such funds may maintain an action on the 
bonds of the said commissioners as relators in such action, and such 
action may, at the option of the person aggrieved, be prosecuted against 
either or both of such commissioners at the same time. [As amended, 
Acts 1891, p. 393. In force June 3, 1891.] R. S. 1894, § 3567. 

154. Compensation of commissioners. — 6. The said commissioners 
shall be allowed and paid for all their services such per centum 
per annum upon the total amount actually paid out by them as may 
be determined by the common council, and no more, such payment to 
be made out of the city treasury upon the order of the common coun- 
cil. R. S. 1894, § 3568. 

155. Removal. — 7. Such commissioners in any city may be re- 
moved from their trust by the judgment of the circuit court having 
jurisdiction, upon the complaint of any tax-payer of such city, or of 
any person holding any bond, or interest warrant, payable out of the 
funds in the hands of such commissioners, upon proof of any neglect 
or violation of the duties of such trust. R. S. 1894, § 3569. 

156. Vacancies. — 8. Vacancies in the office of such commission- 
ers shall be filled by election bv the common council of said city. R. S. 
1894, § 3570. 

[Acts 1877, p. 17. In force March 3, 1877.] 

157. Funding by small cities. — 1. Any city of said state having 
an indebtedness of not less than thirty thousand dollars, evidenced by 
bonds, notes, or city orders, or any or either of them, may, for the 
purpose of funding its indebtedness, reducing the rate of interest on 
its pre-existing obligations, compromising with any creditor or credi- 
tors, or taking up and canceling its bonds, notes or other securities 



179 GOVERNMENT AND POWERS. § 158 

already due, or which shall hereafter become due, upon the vote of 
two-thirds of the members of its common council, issue its bonds, 
with or without coupons, not exceeding in the aggregate the whole 
amount of the indebtedness of such city; which bonds may be of any 
denomination, and payable at any time and place, and bear any rate 
of interest not exceeding ten per cent, per annum, payable semi-an- 
nually. And said city may negotiate said bonds at any market or 
place, at any rate of discount not exceeding ten per cent.; and after 
such bonds shall have been negotiated, no action or proceeding shall 
be instituted, nor any defense to any action interposed, by said city, 
or by any person or persons, the object of which shall be to impair 
the validity or security or depress the value of said bonds. R. S. 1894, 
§ 3571. 

Authorized indebtedness— Funding* and refunding*.— Bonds issued under the above 
section, in funding an authorized city indebtedness, which have passed into the hands of 
innocent and good faith purchasers, are not subject to defense by the city. *'A munici- 
pahty, by the issue of new bonds, waives any defense it may have had to the old 
bonds." 2 Beach Pub. Corp., § 929; Myers v. City of Jeffersonville, 145 Ind. 431. 

Unauthorized indebtedness— For court-house, etc.— Invalidity of bonds.— A city 
can not legally borrow money, and issue bonds evidencing the loan, for the purpose of 
the removal of a county seat, the purchase of a lot for, and the erection thereon of, a 
court-house. Bonds issued for such purpose are invalid. Injunction will lie in favor of 
a tax-payer to prevent the refunding of such bonds. A tax-payer may object to the re- 
funding of any indebtedness created without any authority of law. Myers v. City of 
Jeffersonville, 145 Ind. 431 ; Schneck v. City of Jeffersonville, Ind. Sup. Ct., Dec. 20, 
1898. 

Unauthorized bonds— Leg-alizing*.— When the legislature has the power to authorize 
the issue of bonds, and they have been issued by the municipal corporation without au- 
thority, the legislature may validate the same. The act of 1897 (Acts 1897, p. 108)j 
legalized bonds issued by the citj'' of Jeffersonville. The effect of said act on the va- 
lidity of the bonds is the same as though authority to issue the same had been conferred 
by the legislature prior to the issue of the bonds. Schneck v. City of Jeffersonville, 
Ind. Sup. Ct., Dec. 20, 



158. Tax — Sinking fund .—2. The common council of said city 
shall, annually, add to the tax duplicate a levy sufficient to pay the 
yearly interest on said bonds, with an addition of not less than five 
cents on the one hundred dollars, to create a sinking fund to provide 
for the liquidation of the principal thereof; which fund, with all the 
increase thereof, shall be applied to the pa5aiient of said bonds, and 
to no other purpose: Provided y That the provisions of this act shall 
not apply to any cit}^ having a voting population of sixteen thousand 
or over, as shown by the votes cast for governor at the last preceding 
election. R. S. 1894, § 3572. 

[Acts 1879 S., p. 85. In force May 31, 1879.] 

159« Surrender of charter.— 1. The tax-payers of any city in this 
state with a population of less than seven thousand inhabitants mav 
surrender the charter and organization of such city as a municipal 



§ 160 CITIES. 180 

corporation, in accordance with the provisions of this act. R. S. 1894, 
§ 3573. 

160. Petition— Proceedings.— 2. Whenever two-thirds in number 
of the resident tax-payers, male and female, of such city, over the age 
of twenty-one years, shall file in the clerk's office of the circuit court 
of the county a petition, addressed to the judge of said court, desiring 
to surrender the charter or municipal organization (in which petition, 
the said municipality, by its corporate name, shall be made a party, 
against which summons shall be issued, returnable as in civil ac- 
tions), it shall be the duty of the judge of said court, at the next term 
of said court, on proof of the signatures of the petitioners to said peti- 
tion, to declare and decree the charter or municipal organization of 
such city, from thenceforth, to be null and void. R. S. 1894, § 3574. 

161. Official acts cease witli decree.- — 3. After the entering of the 
decree mentioned in the preceding section by the judge, it shall be un- 
lawful for any officer to assume or take upon himself the right to per- 
form any duty or act as such officer of such city. R. S. 1894, § 3575. 

162. Tested rights not affected.— 4. Nothing contained in this act 
shall be construed as affecting an}- vested right or contract made by 
such city before the rendition of the decree by the judge mentioned in 
section 2 (R. S. 1894, § 3574); but all such vested rights or contracts 
shall have the same force and effect as though such surrender or 
decree had never been made, and the remedies therefor shall con- 
tinue and be enforcible against said municipality in its original cor- 
porate name. R. S. 1894, § 3576. 

[Acts 1875, p. 25. In force March 9, 1875.] 

163. Constructing harbor.— 1. Any incorporated city in this state, 
situated upon or adjoining any harbor connected with a navigable stream 
or lake, or upon any natural water-course which, by dredging or 
otherwise, may be made into a harbor, is hereby authorized to con- 
struct an entirely new harbor, or may extend, widen, deepen, repair, 
or otherwise improve any harbor now made, partially made, or in pro- 
cess of construction, and for that purpose may loan the credit of the 
city as is now provided by law in cases of public improvements. R. 
S. 1894, § 3577. 

164. City may do the work.-— 2. Such city may undertake and 
perform the work without sub-letting, if the common council shall 
deem it best; in which case the work shall be under the supervision 
of a committee of the common council appointed for that purpose, to 
which committee may be added the city engineer. All estimates of 
work upon which payment is demanded shall be certified to be correct 
by the city engineer; and no payment for work or materials furnished 
shall be anticipated. Appropriations for the payment for such work 
and materials shall be made, from time to time, by the common coun- 
cil, out of the funds raised for such purpose, as may be necessary for 
an expeditious prosecution thereof. R. S. 1894, § 3578. 

165. Contract,-— 3. Such city may let such work to any person or 



181 GOVERNMENT AND TOWERS. § 166 

company, by first publi(5ly advertising in such manner as the common 
council may deem best; and the work shall be let to the lowest respon- 
sible bidder. But before the work is commenced, and before such 
contractor shall be entitled to payment for any work or labor done or 
materials furnished, he shall make and enter into bonds, with ade- 
quate penalty, with good and sufficient security, to be approved by 
the committee in charge of said work, for the faithful performance of 
his contract; and, during the progress of the work, such contractor 
shall not be entitled to receive within twenty per cent, of the value of 
the work done or materials furnished until the completion of the 
whole; and in no case shall the city engineer certify the correctness of 
any bill bevond eighty per cent, of the value of the work done or ma- 
terials furnished. R. S. 1894, § 3579. 

[Acts 1877, p. 19. In force March 3, 1877.] 

166. Map and profile-— Estimate.—4. Before any bonds shall be 
issued or work done under the provisions of this act (R. S. 1894, 
§§ 3577-3587), the common council shall cause the city engineer to 
make a map and profile of the work proposed to be done, a,nd an esti- 
mate of the cost thereof, which shall be filed in the office of the city 
clerk; which map and profile shall be notice, to any and all parties 
interested, of the manner in which they are affected by said contem- 
plated work. If any such harbor or natural water-course be or shall 
be crossed by any railroad, before the commencement of the work in 
this act authorized, the map and profile of the improvement contem- 
plated shall include and show such bridge, railroad tracks, side-tracks, 
railroad ground, and switches over and across such harbor or natural 
water-course, and for a sufficient distance on each side thereof, to indi- 
cate and show all contemplated changes of the location of said bridge, 
railroad tracks, side-tracks, railroad ground, and switches, also all such 
contemplated changes, and all additional lands for right of way for de- 
positing earth (commonly called right of waste) deemed necessary by 
such change, and to enaljle the same to be properly made. And the 
city shall have the power to appropriate the lands, so included in said 
map, for such additional right of way or waste; and when such appro- 
priation is made, it shall inure and belong to and become the property 
of the company owning or in the possession of said railroad, upon pay- 
ment to said city of all costs therefor, in the same manner and to the 
same extent as if taken by such company under and in pursuance of 
its charter. R. S. 1894, § 3580. 

[Acts 1875, p. 25. In force March 9, 1875.] 

167. Appropriation of laiid.-~5. All incorporated cities in this 
state shall have power to appropriate so much of the land belonging 
to any person or persons abutting on or adjoining any natural water- 
course which it is proposed to make into a harbor, necessary to the 
construction and completion thereof; and the land Avhich is appropri- 
ated shall be particularly described on the plat and profile aforesaid. 
R. S. 1894, § 3581. 



§ 168 CITIES. 182 

168. Condeiimation. — 6. Such appropriation shall be deemed to 
be made as soon as such plat and profile is filed in said clerk's office; 
and thereafter, if the city and the land owners affected thereby shall 
be unable to agree upon the value of the land taken and damages sus- 
tained or benefits arising therefrom, or if the owner be a non-resident 
of the county, an infant, lunatic, or idiot, the said city may condemn 
the land thus appropriated in the same manner as lands are now con- 
demned by cities for streets and alleys, and the committee appointed 
by the common council for such purpose shall be constituted the ap- 
praisers for condemning land, as in this act provided. R. S. 1894, 
§ 3582. 

169o Notice of appraisenieut. — 7. Whenever the common council 
shall, by resolution, recite the fact that the city is unable to agree 
with any land owner or owners as to the value of the land taken or 
damages sustained or benefits accruing, or that any of the owners 
are infants, lunatics, or idiots, said resolution shall be sufficient au- 
thority for said commissioners to proceed to appraise the land appro- 
priated, the damages sustained, and benefits accruing; but before such 
appraisement shall be made, ten days' notice by publication in any 
newspaper of general circulation in the county, shall be given of the 
time and place when and where said commissioners will meet to make 
said appraisement; which notice, verified by the affidavit of the pub- 
lisher or owner of said paper, shall be returned with their appraise- 
ment by said commissioners. R. S. 1894, § 3583. 

170. Report. — 8. The value of the lands appropriated, together 
with the benefits and damages, shall be considered by such commis- 
sioners and determined by them, who shall return the same to the 
city clerk within five days after making and completing it ; which 
report of said commissioners shall describe the land appropriated, the 
value thereof, and the damages and benefits which will accrue to the 
owner by reason of the proposed improvement or the appropriation 
thereof, and all lands adjacent or near said proposed work, and di- 
rectly benefited thereby, may be assessed for benefits which will ac- 
crue by reason of the proposed work. R. S. 1894, § 3584. 

171. Possession after tender.— 9. The city shall be entitled to the 
possession of the land, for the purpose aforesaid, as soon as a tender of 
the money shall have been made to such owner, or if he be under dis- 
ability, then to his guardian; and if there be none, or the owner be a 
non-resident, then by the payment thereof to the clerk of the circuit 
court of the county in which said land is situate, who shall receive 
the same and hold it by virtue of his office, for such owner or his legal 
guardian. R. S. 1894, § 3585. 

172. Appeal. — 10. Either party may appeal from such assessment 
within thirty days after such assessments are filed, and shall be gov- 
erned in such appeal as is now provided by law for appeals from as- 
sessments for streets and alleys. R. S. 1894, § 3586. 

173. Assessments are liens— Foreclosure.— 11. All assessments of 
benefits shall be collected by installments, in such manner as the com- 
mon council shall, by resolution, provide, and shall be liens upon the 



183 GOVERNMENT AND POWERS. § 174 

lands against which they are assessed; and it shall be the duty of the 
commissioners, in returning said assessments, to describe particularly 
the lands benefited. All assessments for benefits shall belong to the 
city, and may be foreclosed, whenever any installment shall become 
due and remain unpaid, in the name of the city, in the same manner 
as foreclosures of mortgages are enforced, and shall be collected with- 
out relief from valuation or appraisement laws. R. S. 1894, § 3587. 

[Acts 1877, p. 20. In force March 3, 1877.] 

174. Harbors — Slips — Docks — Regulating. — 1. All incorporated 
cities within the state, adjacent to and within which any public har- 
bor may be located and constructed, shall have power to regulate all 
harbor channels, slips, or other water-thoroughfares and docks, and 
to repair those already constructed, bordering upon such channel, 
slip or thoroughfare and dock property within a distance of eighteen 
feet back from the water-front of such property situated upon such 
harbor, and may, by proper ordinance, compel all land or lot-owners 
whose land or lots border or front upon such channel, slip or thor- 
oughfare, to make and construct proper docks or revetments, so as to 
prevent the washing or filling in of earth or other substances into such 
channel, slip or thoroughfare. R. S. 1894, § 3588. 

175. Owners to repair. — 2. It shall be the duty of the common 
council to provide, by ordinance, in what manner and within what 
time all docking shall be done, and, by resolution, in what manner 
and vvithin v/hat time all necessary repairs shall be done ; and upon 
service of notice upon any property-owner of the passage of any ordi- 
nance or resolution requiring the construction or repair of any dock 
in front of any land, lot or lots owned by any party, it shall be the 
duty of such owner to construct or repair such dock in accordance 
with the requirements of such ordinance or resolution. R. S. 1894, 
§ 3589. 

176. Notice. — 3. All notices required by this act shall be in writ- 
ing, and issued and signed by the city clerk, and shall be served by 
the city marshal. Notice of ten days shall be given in all cases where 
notice is required by this act to be given, except where the property 
ov/ner is a non-resident of the county, or is an infant, idiot, or luna- 
tic, when such notice shall be by publication in some newspaper in 
said city, of general circulation, if there be any, and if not, in some 
newspaper of general circulation nearest thereto, published in the 
state of Indiana, for three successive publications, which publications 
shall be deemed equivalent to personal service of notice. R. S. 1894. 
§ 3590. 

177. Construction. — 4. If any such owner or owners, after legal 
service of notice to construct or repair their respective docks, shall 
fail or refuse so to do within a reasonable time, such city may, at its 
option, construct such docks or make such repairs, or, by advertise- 
ment for bidders, published in some newspaper of general circuhition 
in any such city, let such construction or repairs, by contract, to the 



§ 178 CITIES. 184 

lowest responsible bidder; and the cost thereof, in either case, shall 
be assessed against the property of such owner or owners so fronting 
or abutting on said harbor or thoroughfare, by the city commissioners, 
as other property is now assessed for benefits for public improvements: 
Provided, Said commissioners shall not be confined in making assess- 
ments for the construction of docks to the property immediately front- 
ing on such harbor, but may assess any other property adjoining such 
frontage which will be benefited thereby: And provided, further, That 
in cases of repairs only, the cost thereof must be confined to the prop- 
erty immediately fronting on said harbor or thoroughfare. R. S. 1894, 
§ 3591. 

178. Plan and estimate. — 5. Before the work is commenced, a 
plan and specifications of the work contemplated, together with an 
estimate of the cost thereof, shall be made with the city civil engineer, 
approved and adopted b}'^ the common council, and filed with the 
city clerk; and no more shall be assessed against the property bene- 
fited by such improvement than shall be necessary to complete the 
work contemplated. R. S. 1894, § 3592. 

179. Return of assessment. — 6. When said commissioners shall 
have made their assessments, they shall return them to the city clerk's 
office within ten days thereafter, who shall lay them before the com- 
mon council at their first meeting thereafter; and the said common 
council shall, within thirty days thereafter, either adopt or reject such 
asessments. If adopted, said assessments shall become a lien, from 
that time, upon the lands against which the assessments are made. 
The common council may also provide for the payment thereof in in- 
stallments, in such sums and at such times as they may deem best. 
R. S. 1893, § 3593. 

180. Assessments, how collected. — 7. The said assessments shall 
be collected by said city, and in its name; and the said several amounts 
so assessed shall be payable without relief from valuation or appraise- 
ment laws. The proceedings shall conform to and shall be enforced 
in the manner now provided by law for the collection of mechanics' 
liens or the foreclosure of mortgages. R. S. 1894, § 3594. 

181. Liability of city — Superintendent. — 8. No city shall be liable 
to any contractor beyond the liability of such property owner to such 
city, and all contracts shall be at the risk of the contractor. The 
work shall be under the superintendence of the cit}'' engineer. R. S. 
1894, § 3595. 

182. Proceedings. — 9. In all cases not specially provided for in 
this act, all persons interested may have the benefit of the proceedings 
provided for under an act approved March 9, 1875, entitled ''An act 
to authorize incorporated cities in this state to construct, extend, wi- 
den, deepen, repair and improve harbors, and, for that purpose, to 
condemn the lands of persons through or adjoining which such har- 
bor may run, and to assess damages and benefits against adjoining 
owners, where and when the same may be applicable.'' R. S. 1894, 
§ 3596. 



185 GOVERNMENT AND POWERS. § 183 

[Acts 1881, p. 391. In force April 14, 1881.] 

183. Sewers — Drains — Cisterns. — 3. The common council shall 
have power to construct and regulate sewers, drains, and cisterns, and 
provide for the payment of the cost of constructing the same; and, 
when, in its opinion, the construction of any sewer would be of pub- 
lic benefit to the city and necessary for the improvement of any street 
or streets, for the removal of surface or storm water therefrom, may, 
by a two-thirds vote, cause to be paid out of the city treasury such 
portion of the cost of the construction of such sewer as, in the opinion 
of said council, would be equitable and just. R. S. 1894, § 3597. 

See ante, § 124, clauses 26 and 43, and ante, § 127; also post, §§ 1090, et seq., and 1107, 
et seq. 

The above section is not an amendment of any other statute, but is a new and inde- 
pendent section, and so much of it as follows the semicolon should be construed with 
the provisions of the statute relating to street improvements, the same being applicable 
in connection with the improvement of streets, and when necessary to remove the 
surface water from the street. City of Elkhart v. Wickwire, 121 Ind. 331, 338. See 
Kirkland v. Board of Public Works, etc., 142 Ind. 123. 

[Acts 1895, p. 190. In force March 9, 1895.] 

184:. Sewers— Cost in cities less tlian 35,000. — 1. That in all 
cities of this state which had a population of less than thirty-five 
thousand inhabitants, as shown by the last preceding United States 
census, whenever the common council of any such city shall desire 
to construct sewers or make sewer improvements, and whenever any 
such sewer shall from its size and character be intended and adapted 
only for local use by property holders along the line of the street or 
alley on which it is constructed, and in the opinion of such common 
council is not intended or adapted for receiving sewerage from collat- 
eral drains, then, and in that case, the whole cost of the improvement 
shall be paid for by the property holder abutting on such street or 
alley in the same manner and to the same extent as street improve- 
ments are paid for, except that such city shall not be liable for the 
portions of such local sewer which cross other streets or alleys, but 
the total cost shall be apportioned j9ro rata against property holders. 
Provided, however, That any part, or all of the cost of such improve- 
ment may be ordered b}^ such common council, if it deem the same 
expedient, to be paid out of the general fund of such city. Burns'" 
Supp. 1897, § 3597a. 

185. Main sewers — Assessment of costs. — 2. Whenever in the 
opinion of such common council any sewer or drain ordered to be 
constructed, or any enlargement of one already constructed, shall from 
its size and character be intended and adapted not only for use by 
abutting property holders along such drain or sewer, but it is also in- 
tended and adapted for receiving sewerage from collateral drains al- 
ready constructed, or which may be constructed in the future, then, 
and in that case, such common council shall make a division of the 
cost of such work. So much of such cost as shall be equivalent to the 
construction of an adequate sewer not adapted to receiving sewerage 



§ 186 CITIES. 186 

from collateral drains or sewers shall be paid for exclusively by the 
abutting property holders, in the same manner and to the same extent 
as local sewers are paid for by them. The excess of cost over and 
above what would be equivalent to the cost of a local sewer shall be 
assessed against each piece of property beneficiall}" affected in propor- 
tion to the benefits received, including abutting property holders, as 
well as the holders not situated on the line of such drain or sewer, but 
in the opinion of the common council beneficially affected by the con- 
struction of such sewer, either directly or immediately or indirectly, 
and by way of the advantage which shall be realized in the future 
when collateral drains may be constructed from such property to such 
main sewer. Provided, however, That any part or the whole of the cost 
of such improvement may be ordered by such common council, if it 
deem the same expedient, to be paid out of the general fund of such 
city. Burns' Supp. 1897, § 35975. 

186. Laws goyerniiig assessments — Bonds^ — Payment, — 3. The 
provisions of the acts of the general assembly of the state of Indiana, 
relating to the assessment for street improvements shall govern such 
common council in making assessments for the cost of any local sewer 
or drain, or the equivalent thereof. In the construction or enlarge- 
ment of any sewer or drain adapted for more than local use the pro- 
visions of the acts, of the general assembly of the state of Indiana 
relating to the assessments of benefits in the laying out of streets shall 
govern such common council in assessing benefits: Provided, That in 
the case of sewers the assessments may be made to ran twenty years, 
and the bonds issued to anticipate said assessments may also be issued 
payable during a period of twenty years: And provided, further, That 
if such common council deem it expedient, any part of the whole cost, 
or the whole cost of any of the improvements mentioned in this act 
may be paid out of the general revenue of such city. Burns' Supp. 
1897, § 3597c. 

[Acts 1891, p. 304. In force June 3, 1891.] 

187. Drains, inlets and outlets — Damages. — 1. That whenever the 
common council of any city shall find it necessary for the successful 
drainage of said city to construct any drain as an inlet or as an outlet, 
leading into or out of said city, they shall cause a survey of said pro- 
posed inlet or outlet to be made and platted, therein showing the com- 
mencement, course, distance, terminance [termination], depth, width, 
and whether open or covered; also, the names of the owners of said lands 
without said city, that will be affected thereby, described in tracts of 
forty acres, according to fractions of government survey, or less tracts 
when they exist, together with a description of any highway that will 
be benefited by said inlet or outlet. Said survey and plat shall be 
made by stations of not mor^ than one hundred feet. Said city shall 
also cause an estimate of benefits and damages of the lands without 
said city to be made in favor of and against said lands or the owners, 
including the benefits to said city, and the benefits to any highway 
affected thereby. Said city shall, at least three days before making sucli 



1S7 GOVEFvNMPJNT AND POWERS. § 187 

estimates of benefits and damages, notify in writing the owners of said 
affected lands, and also when any public highway will be benefited said 
city shall notify the trustee of the township in which said highway 
is located that, on a day and hour named in said notice, that said city, 
b}^ a committee of three disinterested householders or freeholders of 
said county, to be selected by said city, will be on said lands and then 
and there view the said proposed inlet or outlet and the lands affected 
thereby, and that said owners, or any of them, are requested to be 
present, with a right to be heard for or against any assessment that 
shall be made or proposed to be made against said lands. Said com- 
mittee shall have power to adjourn from time to time by openly an- 
nouncing said adjournment and the time and place to which said ad- 
journment is made. When said committee shall have completed said 
estimates of benefits and damages, including benefits to said city, said 
committee shall report tlie same in writing to said city mayor, duly 
subscribed and sworn to as being, in the opinion of said committee, 
just, fair and equal by and between all the parties, including any esti- 
mate of benefits to any highway without said city that will be affected 
thereby. Upon the return of said report said common council shall 
approve of said survey and said report, if it be found to be substan- 
tially correct, and cause a record of said approval to be duly entered 
of record in the journal of said city. It shall thereupon be lawful 
for said city, by order of its council, to file a petition in the circuit 
court of the county in which said city is situated, therein setting forth 
that such inlet or outlet is necessary to effectually drain said city; that 
the survey, plat and assessments of benefits and damages are, as said 
council believes, correct, just and fair between the parties interested 
in such drainage. Such petition shall be signed by a majority of the 
members of said council, to which shall be attached a certificate of the 
mayor of said city, showing that the petitioners are members of said 
council, and that they constitute a majority thereof, and which cer- 
tificate shall be attested by the seal of said cit})^ and the signature of 
the clerk of said city. That said petition shall be conclusive of every 
fact herein required to be alleged, except as to assessments of benefits 
or damages, which shall be prima facie conclusive thereof. Such pe- 
tition shall be sufficient to give the court jurisdiction of all the lands 
therein described without said city to be affected by said proposed 
drainage, and power to fix a lien thereon for such sum or sums as may 
be found just and equitable, and to adjudge any damage found to be 
due any remonstrant, and to determine the rights, liabilities and equi- 
ties of each and every person or persons, corporations affected thereby. 
R. S. 1894, § 3598. 

Statute construed— Drainag-e— Sewer ag-e.— This act is to be liberally construed, cind 
the word "drainage," as used therein, includes ''sewerage," and by procedure under 
this statute a drain may be constructed to drain and carry off the sewag:e of a city by 
furnishing an outlet for sewers. City of Valparaiso v. Parker, 148 Ind. 379. 

It is not required by this statute that a drain constructed thereunder shall commence 
at the city limits, but the same may be constructed from a point within the city limits. 
City of Valparaiso v. Parker, 148 Ind. 379. 



§ 188 CITIES. 188 

Committee to assess benefits and damag^es— Objections to.— Objections to the quali- 
fications of a member of the committee to assess benefits and damages must be made at 
the earhest opportunity, and if not so made they will be deemed waived. AAHiere a 
party was notified and requested to appear before such committee, but failed to do so 
until after said committee had reported to the common council, and the petition for the 
drainage of the city had been docketed, objection by him to a member of the committee 
came too late. City of Valparaiso v. Parker, 148 Ind. 379. 

188. Petition to circuit coui't — Remonstrance — Proceedings. — 2, 

Whenever the petitioners shall file their petition with the clerk of the 
circuit court they shall fix and note thereon the date fixed for docket- 
ing thereof, and it shall be made to appear to the court that notice has 
been given b}^ publication for twenty days of the proposed motion, to 
docket said petition, therein giving the names of the owners of said 
lands, to be affected thereby, and the day set for docketing said peti- 
tion, thereupon the court shall order said petition docketed as an ac- 
tion pending therein. Every person owning lands to be affected by 
said proposed drain, including the trustee of any township in which 
is a highwa}^ that may be affected thereby, shall have three days after 
docketing said petition to file any motion, demurrer, remonstrance or 
objection he may have to the form and sufficiency of said petition. 
After the expiration of said three days the court shall consider said 
motion, demurrer, remonstrance or objection, and if the court find said 
petition defective and not amendable, it shall dismiss said proceedings 
at the costs of the petitioners. But if the petition is amendable, 
without material injury to parties objecting, the court shall give the 
petitioners a reasonable time in which to amend the same, upon such 
terms and in such manner as the court may order. If the court shall 
find said petition sufficient, it shall deny said motion and overrule said 
demurrer, remonstrance or objection. That either party may except 
to the ruling of the court as in other civil cases. All objections to 
said petition not taken within said three clays shall be deemed waived: 
Providing, further, That if any person interested in any benefits or 
damage shall within said three daj^s remonstrate against the assess- 
ments of benefits and damages, as set forth in said petition, said per- 
son or persons shall file in said court his or their remonstrance, show- 
ing one or more of the following facts, to wit: 

First. That said assessment is too high and disproportionate to 
other lands affected thereby, or are disproportionate to the benefits 
assessed against said city. 

Second. By any person whose lands are assessed for benefits, that 
certain other specified tract or tracts of land are assessed to'o low, ac- 
cording to benefits secured. 

Third. By any person or persons whose lands are assessed, that 
the same are not affected, nor will be benefited by said proposed drain- 
age. 

Fourth. By any person to whom damages are assessed, that the 
same are inadequate. Said remonstrance shall be signed by each and 
every person joining therein, and filed in said court. Thereupon it 



1S9 GOVERNMENT AND POWERS. § 189 

shall be the duty of said court to order a re-appraisement of benefits 
and damages, according to the issue tendered by said remonstrance; 
and shall appoint three good and true men of judgment and discretion, 
and not in any way related to or affected by said proposed drainage 
and resident householders or freeholders of said county, who shall, 
under the order of said court, fixing the time and place of the meet- 
ing of said committee, proceed in accordance with said order, to view 
the line of said proposed ditch, and the lands to be affected thereby, 
and shall fix, determine and assess any or all of the benefits or dam- 
ages to the owner or owners of said lands, and the benefits against 
said city, which assessment shall be made on actual view of said lands, 
and shall, under the order of said court, report the same in writing, 
duly verified and sworn to, as being in the opinion of said committee 
just, fair and equitable, between the parties interested in said proceed- 
ings. R. S. 1894, § 3599. 

189. Report, correction of — Hearing — Order of court. — 3. Any 
party aggrieved by said report, may, within ten days after filing of 
said report, or at such other time, not less than ten days, as the court 
may fix, move the court to have any error apparent on the report 
corrected by said committee; and, if necessary, the court shall re-refer 
said report to said committee, with instructions to review and correct 
their said report, and when corrected and refiled, it shall be conclusive 
of the rights of the parties, unless one or more of the parties affected 
by said report shall, within a time to be fixed by the court, appeal 
from such report to the court, and which appeal shall be by the court 
noted on its docket, and set down for trial by the court. The trial of 
said cause shall be conducted as other civil cases, without a jury; and 
if the court find in favor of the remonstrants, the court shall modify 
the assessments or affirm them, as justice and equity may require; and 
shall assess costs for or against each and every party as in the opinion 
of said court may be just: Provided, That if the commissioner's 
report of assessments of benefits and damages shall substantially agree 
with the original estimates as set forth in said petition, and said 
remonstrants shall not further appeal from the report of said commis- 
sioners, the court shall, in such case, assess the costs of said review to 
said remonstrants. If the finding of the court on the trial shall be 
against the remonstrants, the court shall make an order declaring the 
proposed work established, and shall approve the assessments as finally 
determined, and shall order the construction of said drain. The court 
shall refer the said drains to the drainage commissioner of said county 
and require him to construct said drain according to the plans and 
specifications as set forth in said petition and in accordance with the 
findings and final order of said court. If the findings of the court 
shall be for or against either party in part, the court shall apportion 
the cost as justice and equity may require: Provided further, That 
no part of the cost made by said city in its survey, plat or assessments 
shall be assessed as costs, in the construction of said drain, but shall 
be paid by said city. R. S. 1894, §3600. 



§ 190 CITIES. 190 

190. Consti'nction — Assessments — Coliection. — 4. The commis- 
sioners charged with the construction of said inlet or outlet, shall pro- 
ceed to construct the same, as hereinbefore provided and ordered. He 
shall make all necessar}^ assessments and collect the same from time to 
time as may be required; he shall pay all costs not otherwise adjudged 
against parties; shall pay all expenses incident to the construction of 
said inlet or outlet and such expenses as the court shall deem a proper 
charge upon the funds in the hands of said commissioner. His assess- 
ments made from time to time shall be upon the lands benefited and 
the assessments against said city, ratably upon the amount of benefits 
as adjudged by the court, such sums of money as may be necessary 
therefor, not exceeding the whole benefits so adjudged upon any one 
tract or against said city, and require the same to be paid in install- 
ments not exceeding twenty per cent, per month, at such times as he 
shall fix, after thirty daj^s' notice thereof to be given by personal notice 
to the owner of said lands, or by one publication in a newspaper pub- 
lished in such city. He may divide the work into such parts as he 
may deem best, and let the same to the best advantage, in such parts 
or altogether as he ma}^ determine and contract for the construction 
thereof. He shall collect the assessments so made by him and apply 
the same as herein provided; and for the purpose of making such col- 
lections, if not paid as above required, he shall have all the power to 
distrain and sell personal property which is, by lavr, conferred upon 
the county treasurer for the collection of taxes, and for so doing, shall 
be allowed the same fees and costs. He ma}^, if he so determine, bring 
suit in the name of the state of Indiana, for his use as commissioner 
of drainage, in any court of competent jurisdiction to enforce a lien 
upon any tract or tracts of land for the amounts so assessed by him, 
and also to bring suit against said city, in the court making the order 
for the construction of said inlet or outlet, and which court shall have 
power to enforce its orders against said city by attachment as for con- 
tempt against mayor and common council of said city or against any 
other officer of said city, who being required to pay or provide for the 
payment of said assessments, shall neglect or refuse to obey the order 
of said court. All judgments and orders obtained may include reason- 
able attorneys' fees for services in prosecuting the same, and shall be 
without relief from valuation or appraisement laws, or he may make 
his certificate, showing the amount of such assessments against an}^ 
tract of land and that default in its payments as required, has been 
made and file the same with the auditor of the county where such 
lands are situated, and thereupon the auditor shall place the same 
upon the succeeding tax duplicate, and the same shall be collected as 
state and county taxes are collected: Providing further, That default 
made by such city shall be prosecuted in the court where said petition 
was filed, and which court shall have all like remedies for enforcing 
its judgments known to the courts of law and equitv of the state. 
R. S. 1894, § 3601. 

191. Notice of proceedings — Liens — Becording. — 5. The filing of 
the petition and docketing the same as provided in section 1 of this 



191 GOVERNMENT AND POWERS. § 192 

act shall be deemed notice of the pendency of proceedings to all per- 
sons whose lands are named in the petition, and to said city, and the 
final order of the court, fixing the amount of assessments, shall be 
deemed notice of said liens, and a charge against said city. The com- 
missioner charged with the construction of the work shall, as soon as 
may be after he has been directed to construct said work, make out a 
notice wherein he shall state that the work has been established by 
the court, also the several assessments to the tracts of land as the same 
have been finally confirmed by the court, and cause the same to be re- 
corded in the office of the recorder of the county in which said lands 
are located. R. S. 1894, § 3602. 

192. Act liberally construed — Informalities — Release. — 6. This 
act shall be liberally construed to promote the drainage of cities, the 
reclamation of wet lands and the improvement of the public health. 
Collection and assessments shall not be defeated by reason of any de- 
fect in the proceedings, accruing prior to the judgment of the court; 
but said judgment shall be conclusive that all prior proceedings were 
regular and according to law; nor shall any person, at any stage of 
the proceedings herein, be permitted to take any advantage of an error, 
default or informality, unless the person complaining is directly af- 
fected thereby. If the court shall deem it just to release any person 
or modify any assessment or liability, such release or modification 
shall in no manner affect the rights or liabilities of any other person. 
R. S. 1894, § 3603. 

193. Repairs. — 7. Repairs shall be governed by the law in force 
in relation to repairs of ditches, as in other cases, by law may be pro- 
vided: Provided, That in cases of emergency, said city shall have the 
right to open up or clean out said inlet or outlet, for which the proper 
officer having the keeping of said inlet or outlet in repair shall assess 
benefits or damages for or against such city, or for or against the land- 
owners or the highway, if any are affected thereby, and shall fully 
pay said cit}^ therefor, less its benefits. R. S. 1894, § 3604. 

194. Report of commissioner. — 8. On the completion of said inlet 
or outlet, the commissioner having the construction thereof shall make 
and file in said court a report, therein showing the amount of moneys 
by him received and from whom and at what time he received the 
same. He shall also show when, to whom and for what said moneys 
were paid, with proper vouchers therefor, excepting for incidental ex- 
penses. He shall also show the number of days, giving day and date 
of time by him devoted to the construction thereof, and which report 
shall be duly verified by the oath of said commissioner, signed and 
acknowledged according to law. R. S. 1894, § 3605. 

195. Agreement as to damages — Recording — Collection. — 9. Af- 
ter making said survey, plat and assessments, as hereinbefore required 
to be made, said city by its common council, or a committee by it duly 
appointed, may submit said survey, plat, and estimates of benefits and 
damages (or copies thereof), to the owners of lands affected thereby, 
and to the proper officer having charge of highways affected by said 
proposed inlet or outlet, and will accept said estimates of benefits and 



§ 196 CITIES. 192 

damages as therein assessed or agreed upon with said city; then and 
in such case said city shall cause said survey, plat and assessments as 
agreed upon, together with the agreement of said parties duly acknowl- 
edged, to be recorded in the office of the recorder of said county, and 
when so recorded shall conclude the rights of the parties thereto, and 
become a lien upon the lands affected thereby for assessments made 
against said lands not exceeding the amount of said original assess- 
ments or as modified by the agreement of said parties. The record- 
ing of said survey, plat, estimates and agreements shall be deemed as 
an establishment of said inlet or outlet and shall entitle said city to 
proceed and construct, and maintain said inlet or outlet as a part of 
the city drainage; and shall entitle said city by its duly qualified 
officers to assess and collect assessments by it made in the construc- 
tion of said inlet or outlet as if made by the commissioner of drainage 
as herein provided: Providing further, That under this provision said 
city shall keep said inlet or outlet in repair at its own expense, with a 
right of action against any person for damages who wantonly or care- 
lessly fills or blocks the flow of water in said inlet or outlet, and judg- 
ments rendered herein in any court shall be without relief and in- 
clude reasonable attorney's fees for the complaining party. R. S. 
1894, § 3606. 

[Acts 1889, p. 13. In force February 14, 1889.] 

196. Levees — Construction by city — Procedure. — 1. That when- 
ever the common council of any city is of the opinion that the con- 
struction, repair or maintenance of any levee or levees for the protec- 
tion of the city or property within the corporate limits thereof is of 
sufficient public interest to justify construction, repair or mainte- 
nance thereof by the city, the common council may by resolution cause 
surveys and location and estimates of the costs thereof to be made, or 
if for improvement or repairs only, may cause surveys and estimates 
of the costs thereof to be made; and both kinds of surveys and esti- 
mates may be made when expedient, and may provide by ordinance, 
on return of surveys and estimates, for doing the work, and appropriate 
money from the general funds of the city not otherwise appropriated 
for that purpose, and provide by ordinance the means required by a 
levee tax of not exceeding four per cent, on the valuation of property, 
and by assessment of benefits on the property benefited, as in case of 
opening or change of streets, except that when the benefits are to be 
assessed the city shall cause a roll to be made from the tax duplicate 
and assessment rolls perfecting any imperfect descriptions of lands 
and lots and from the surveys outside the corporate limits, which lat- 
ter shall be separate from the former, and the roll shall be of conveni- 
ent form to allow the benefits assessed to be set opposite the several 
parcels described in a designated column, and shall append thereto a 
resolution of the common council requiring the city commissioners to 
meet on a day named in the resolution and enter upon the duty of as- 
sessing the benefits to the lands and lots described on the roll. A 



193 GOVERNMENT AND POWERS. § 196 

copy of which resolution shall be served on the commissioners and 
they shall meet at the council hall on the day named and receive the 
roil, and enter upon their duties, and shall proceed with reasonable 
expedition, and when their duties are performed, shall return the roll 
into the clerk's office of the city, duly executed, and so certify over 
their signatures. And the roll may be amended at any time as to 
omitted or imperfectly described lands, or lots, and ownership thereof, 
and the benefits thereto assessed by the commissioners. On such roll 
being returned the clerk shall cause notice thereof to be given for two 
weeks, by publication in a newspaper of the city, or if none is pub- 
lished therein, by posting notices at five public places' therein for two 
weeks, stating that the assessment of benefits roll has been returned^ 
and that on a day fixed, not earlier than the expiration of the notice,, 
the city commissioners will meet at the council hall as a board of 
equalization of benefits, and will hear and determine all complaints of 
property owners assessed, and they shall be attended by the city clerk 
as clerk of the board, and shall meet from day to day until the busi- 
ness is completed and then perfect the roll as then determined upon 
and make final return thereof; and said roll shall be final and con- 
clusive as to all property owners not appearing, and those appearing 
may appeal to the common council at the next regular session, if ag- 
grieved. And at such meeting of the common council action may be 
taken thereon, both as to appeals and final action, approving or re- 
jecting the same, and if approved the same shall stand as the roll of 
benefits, and the tax duplicate, provided for in this act, shall be made 
therefrom as to the benefits. And any one aggrieved by the action of 
the common council, may appeal therefrom to the circuit court of the 
county wherein such city is situated, within twenty days, upon filing 
with the clerk of such city, a sufficient bond conditioned for the pay- 
ment of all costs and damages occasioned by such appeal, and the 
trial of such appeal shall be conducted as other trials of civil causes 
are conducted in said court. The city clerk shall, upon the filing of 
said bond, forthwith make out and certify, under his hand and official 
seal, a true and complete copy of all papers connected in any way 
with said matter, beginning with the order of the council directing 
the work to be done and contracted for, and including all notices, 
precepts, orders of council, bonds and other papers filed in said matter, 
which transcript shall be in the nature of a complaint, and to which 
the appellant shall answer upon rule, and the same shall thereupon 
be tried in all respects as other civil cases are tried, and the result 
thereof certified by the clerk of the circuit <30urt to the city clerk. 
And no other notices or greater formality shall be required in the as- 
sessment of benefits, which benefits shall be collected and collection 
thereof be enforced as taxes are collected, and otherwise such benefits 
shall be assessed as provided by law for opening and changing of 
streets: Provided, That the taxes and benefits assessed may be divided 
into not exceeding six equal parts in each individual case, or in case 
of joint, or tenant in common ownership, each such ownership shall 

CiT. AND To.— 13 



§ 197 CITIES. 194 

be as an individual case; and the whole taxes and benefits so divided 
shall be placed on the tax duplicate as taxes are placed, either before, 
at the time, or after the duplicate is otherwise made up, and may be 
placed on a separate book if most convenient, which shall be a part of 
the tax duplicate, and be a lien on the real estate and property taxed 
or benefited from the time assessed, and be collected and paid, one in- 
stallment each year, as other taxes are collected; such taxes and bene- 
fits ma}^ be levied and assessed at any time, and such benefits assessed 
and taxes assessed may be anticipated by the city in making the con- 
tracts for doing the work, not exceeding the fund so provided, and as 
otherwise provided. The tax and benefits provided for shall continue 
and be paid each year in installments, during the period provided, 
and both funds shall be sacred to the levee and shall not be applied to 
any use until such work is completed and paid for. The whole tax 
and benefits may be anticipated in contracting for the work, and, to 
the extent anticipated, shall thereby be irrevocably appropriated to 
such payment until complete. R. S. 1894, § 3607. 

197. Contract — Bids — Payment. — 2. The contract for the work 
shall be let to the lovv^est responsible bidder, on such notice and sealed 
bids and bond as may be provided for in the ordinance, the work to 
be paid for from the general funds appropriated for that purpose and 
from the tax and benefits assessed so that no indebtedness of the city 
under the contract will exist in excess of the funds on hand appropri- 
ated to the payment thereof, until the current funds applicable are in 
the treasury, to cancel the same. But the execution of the contract 
for the work shall subrogate the contractor, on performance by him as 
stipulated, to the lien of the city for the taxes and benefits assessed, as 
in this act provided, to the extent required to pay for the work, with- 
out affecting the right and duty of the city through its proper ofiicers 
to collect the taxes and enforce the collection thereof as authorized by 
law, and the expense of such work and the maintenance thereof shall 
be deemed of the current expense of the city having the special 
benefit separately of the provisions of this act. And said funds 
may also be anticipated otherwise, in any manner authorized by 
law for other taxes, and when the taxes and benefits are so assessed 
and the lien thereof fixed as herein provided, orders may be drawn 
on the city treasurer, payable out of the funds as the common 
council may direct, in denominations from $100 to $10,000, showing 
that they are secured by the tax and benefit liens amounting to the 
sum of such taxes existing and in the installments thereof payable 
as fixed, and that they will be received by the treasurer in payment of 
the taxes and benefits of the year named, and no more shall be drawn 
against the fund for any year than four-fifths of the amount collecti- 
ble in that year. Such orders shall be drawn, payable to bearer, and 
be good to any bona fide holder, and as many series of such orders may 
be issued as the annual payment of taxes and benefits provided for; 
and each series shall stand'secured by the tax and benefit lien of that 
year, and be payable therefrom and may be applied on the work as it 
progresses, as may be provided for in the contract, or contracts, for 



195 GOVERNMENT AND POWERS. § 198 

the work, or the orders may be negotiated under the direction of the 
common council, and the contract made, paid in cash from the pro- 
ceeds of the said orders, and when so applied or negotiated, shall stand 
performed as against the contractor under the contract, and shall stand 
secured and shall have the full force and virtue herein provided for 
the contract first herein authorized, and all such orders when taken 
up by the treasurer shall not be again negotiated, but shall be can- 
celed. R. S. 1894, § 3608. 

198. Jurisdiction of city — ^Condemnation. — 3. For the purposes 
herein provided, the jurisdiction of the city is extended four miles be- 
yond the corporate limits, and the lands to be protected may all be 
assessed with the benefits. And authority is given to the city to enter 
upon the lands and make surveys, doing no unnecessary damages, 
and to purchase, receive conveyances of and hold the necessary lands 
for right of way and construction and maintenance. In case such 
lands can not be so obtained by contract, they may be condemned and 
taken by the city as railroad corporations are authorized by law to 
condemn and take real estate for right of way and other railroad pur- 
poses, except that the surveys, location and plan of the levee, or a 
copy thereof, shall be filed in the recorder's office of the county, and 
in the city clerk's office, and no other map or profile shall be required; 
which survey and plan shall be certified by the city clerk, under seal, 
as the survev and plan adopted by the common council, or a true copy 
thereof. R. S. 1894, § 3609. 

199. Collection of assessment — Official dnties. — 4. The city clerk 
shall copy from the duplicate the lands and benefits assessed outside 
of the corporate limits of the city, and certify the same under the seal 
of the city, and deposit the same with the county treasurer in his 
office, and it shall be his duty to collect the same annually as required 
by ordinance under this act, and pay the money to the city treasurer 
when requested by him, deducting the fees allowed by law for collect- 
ing other taxes. And the duplicate required by this act, and said 
transcript filed in the county treasurer's offices shall be due notice of 
the lien of the taxes and benefits assessed. The county treasurer shall 
report to, and make settlement with, the common council as to such 
benefits the same as he is required by law to do with the board of 
county commissioners, and will [shall] advertise, and with the county 
auditor sell the lands of delinquents as required by law for other de- 
linquent taxes, and make certificate of purchase and conveyances as 
required by law, with like force and effect. R. S. 1894, § 3610. 

200. Duplicates — Description — Engineer. — 5. The duplicates re- 
quired shall describe the lands assessed with benefits competently, and 
the city civil engineer is required to make all necessary surveys and 
plans to furnish such description. R. S. 1894, § 3611. 

[Acts 1873, p. 58. In force March 6, 1873.] 

201. Aid to roads, bridges, etc. — 60. Any incorporated city, un- 
der this act, shall have power to borrow money, to subscribe to the 
stock of any plank road, macadamized road, or railroad running into 



§ 201 CITIES. 196 

or through such city; or to any bridge company organized under the 
laws of this or any other state, to construct a bridge across any river 
or water-course within or bordering on this state, where such bridge 
has its termini, or either terminus, within such city; or to public im- 
provements or public works, — to make donations in money or bonds 
of such city to aid in construction of such roads or bridges or public 
improvements or public works, only on petition of a majority of the 
resident freeholders thereof: Provided, That said donations shall not 
be payable either in money or bonds until the roads or bridges or pub- 
lic improvements or public works, in aid of which it is given, shall 
be so far completed as to admit the running of trains from the point 
of commencement to such point or points as are designated in the pe- 
tition, in case of a railroad or railroad bridges; or the passage of 
wagons in the case of other roads or bridges; and, in case of public 
improvements or public works, upon the completion thereof. And 
when so far completed, it shall be obligatory on the common council 
of said city to contract and do w^hatever may be necessary to carry into 
effect the substantial meaning of such petition; and the obligation 
herein enjoined may be enforced in the courts of this state having 
competent jurisdiction, on the application of any signer of such peti- 
tion or president of any road or bridge company in behalf of which 
such donation may have been made, at any time after said petition or 
petitions have been presented to such common council. And for any 
debt created in pursuance of the provisions of this section, in carry- 
ing out the intentions of the petitioners aforesaid, the common coun- 
cil shall add to the duplicate of each year thereafter a levy sufficient 
to pay the annual interest on such debt or loan, with an addition of 
not less than five cents on the one hundred dollars, to create a sinking 
fund for the liquidation of the principal thereof; which fund, with all 
the increase thereof, shall be applied to the payment of such debt, 
and to no other purpose. R. S. 1894, § 3612. 

See OMte, § 146, and post, §§ 202, 203, 214 and notes ; refunding bonds and sinking fund, 
see post, § 1001, et seg. 

Aid to private corporations. — States can not by taxation take private property for 
any but a public use. Cities can not be authorized to donate bonds to private corpora- 
tions. Cole V. LaGrange, 113 U. S. 1; Citizens', etc., Assn. v. Topeka, 87 U. S. 20; 
Wall. 655; Chicago, etc., Co. v. Chicago, 166 U. S. 226; 2 Elliott Eailroads, § 814 and 
note; Hainer Munic. Securities, §§ 185, 188. 

Aid to railroads — Credit — Bonds. — Legislatures of states unless restricted by some 
special provisions of their constitutions, may confer upon municipal corporations the 
power to take stock in corporations created to build railroads, and to lend their credit 
to such corporations, or to issue bonds to aid railroad companies, and to levy taxes to 
pay the debts thus incurred. Taxation in such case is for a public purpose. Loan As- 
sociation v. Topeka, 87 T. S. 655; Chicago, etc., E. Co. v. Chicago, 166 U. S. 226; John 
V. Cincinnati, etc., R. Co., 35 Ind. 539; Brocaw v. Board, etc., 73 Ind. 543; 2 Elliott 
Railroads, §§ 812, 814; Hainer Munic. Securities, § 138. 

A municipal corporation has no power to issue bonds in aid of a railroad, except by 
legislative permission. The legislature in granting such permission can impose such 
conditions as it may choose. The authority to aid a railroad and incur a debt in ex- 
tending such aid, under federal decisions, does not include the power to execute nego- 



197 GOVERNMENT AND POWERS. § 201 

tiable bonds except subject to the restrictions and directions of the enabling act ; ])ut 
tliat such bonds are commercial paper, see decisions of our state in subsequent note. 
Young V. Clarendon Tp., 132 U. S. 340; Wells v. Supervisors, 102 U. S. 625; Kelley v. 
Milan, 127 U. S. 139; 2 Elliott Railroads, §§ 827, 875, 876 and cases; Hainer Munic. Se- 
curities, § 139; 2 Beach Conts., § 1175, et seq. 

ContlRliing' power. — The power conferred upon a municipality to aid railroads, etc., 
is a continuing one, and is not exhausted by being once exercised. Brocaw v. Board, 
etc., 73 Ind. 543, 548; 2 Elhott Railroads, §828. 

Power strictly pursued.— The power to issue public aid bonds, or to subscribe for 
stock or make donations, is not one of the inherent or incidental corporate powers, and 
must be strictly pursued. Hainer Munic. Securities, § 141 and cases. 

This section is not in conflict with the next following section and is not inconsistent 
therewith. City of Madison v. Smith, 83 Ind. 502. 

This section is constitutional. Thompson v. City of Peru, 29 Ind. 305 ; City of Aurora 
V. West, 9 Ind. 74. 

Express authority— Subscription for stock.— Express authority is conferred by this 
section upon cities to subscribe for stock in railroad companies running into or through 
the city, and to borrow money by the issue of bonds to pay such subscriptions ; also, to 
make donations of bonds of the city to the railroad companj^ to aid in the construction 
of the road through or into the corporate limits. Thompson v. City of Peru, 29 Ind. 
305; Wilkinson v. City of Peru, 61 Ind. 1 ; Indiana, etc., R. Co. v. City of Attica, 56 
Ind. 476. 

The proviso in this section relates to donations by cities to railroads, and not to sub- 
scriptions of stock ; a petition of a majority of the resident freeholders is necessary to 
authorize a donation, but is not necessary to authorize a subscription to stock. Thomp- 
son V. City of Peru, 29 Ind. 305. 

Statutes of this character authorizing cities to subscribe for stock in corporations or- 
ganized for the purpose of constructing works of public benefit, and to issue bonds for 
such stock, are constitutional and valid, but are to be strictly construed. A municipal 
corporation can not, mthout statutory authorization, subscribe for stock and issue bonds 
in payment therefor in a railroad corporation. City of Aurora v. West, 9 Ind. 74; 
Council v. City of Peru, 29 Ind. 305 ; City of Mt. Vernon v. Hovey, 52 Ind. 563 ; Mayor, 
etc., V. State, 57 Ind. 152; Indiana, etc., R. Co. v. City of Attica, 56 Ind. 476; Brocaw 
V. Board, etc., 73 Ind. 543; Pittsburgh, etc., R. Co. v. Harden, 137 Ind. 486; City of 
Aurora v. West, 22 Ind. 88; City of Lafayette v. Cox, 5 Ind. 38; Demaree v. Johnson, 
150 Ind. 419; 2 Elliott Railroads, §§831, 836; Hainer Munic. Securities, §141 and 
cases. 

Petition— Remonstrance— Action of city thereon. — In ascertaining the number of 
resident freeholders so as to determine numerically whether a petition for a city to 
make a donation in city bonds to aid in the construction of a railroad is signed by a 
majority of resident freeholders, as required by this section, all persons resident within 
the city and owning a freehold interest in the land must be counted. State v. Mayor, 
etc., 108 Ind. 74. 

AMiere a petition for such donation is presented to the common council and referred 
to a committee of the council, persons who sign the petition may, by a remonstrance-, 
withdraw their names from the petition while the same is in the hands of the commit- 
tee ; and if, after such withdrawal, there is not a sufficient number of petitioners asking 
the donation, the council can not make the same. Noble v. City of Vincennes, 42 Ind. 
125. 

Estoppel— Leg-ality of petition.— The action of the common council, in adopting a 
resolution declaring a donation petitioned for should be made, does not estop the city, 
in an action for a mandate to issue bonds, from denying that such petition had been 



§ 201 CITIES. 198 

signed by a majority of the resident freeholders. Mayor, etc., v. State, 57 Ind. 152; 
City of Madison v. Smith, 83 Ind. 502. 

Decision of the council. — Where a city council has authority to decide upon the suf- 
ficiency of such petition, and it-s decision is final, it is so whether for or against the 
petition. The decision of the council, that such petition has or has not the requisite 
number of signatures, is not conclusive, but the question is open to inquiry, either upon 
mandamus to compel, or injunction to prevent, action by the council. The rule is dif- 
ferent where there is the right of appeal or the tribunal is strictly a judicial one. City 
of Madison v. Smith, 83 Ind. 502. 

The decision of the city council that the requisite number of freeholders had peti- 
tioned for the subscription is conclusive unless it may be set aside in some direct pro- 
ceeding for that purpose. Evansville, etc., E. Co. v. City of Evansville, 15 Ind. 395. 

The two cases last cited seem to be in conflict upon the point of the conclusiveness of the 
decision of the common council upon the sufficiency of the petition, but the case of 
Evansville, etc., R. Co. v. City of Evansville, supra, has been cited with approval and 
followed in many subsequent cases : McEneney v. Town of Sullivan, 125 Ind. 407, 412 ; 
Tucker v. Sellers, 130 Ind. 514,517; Cason v. Harrison, 135 Ind. 330,335; McCollum v. 
Uhi, 128 Ind. 304, 308. 

The common council must decide upon petitions to aid railroads before bonds can 
rightfully be issued. City of Madison v. Smith, 83 Ind. 503. 

Until a proper and sufficient petition is presented, the council has no power to issue 
the bonds ; and, when such a petition is presented, the council has no right to refuse to 
issue them on the completion of the road to the designated point; a fact, also, to be as- 
certained by the council. Mayor, etc., v. State, 57 Ind. 152, 162. 

Under the former charter of Evansville, the common council had no power to sub- 
scribe, in the absence of the petition required by the charter, but when power to sub- 
scribe was conferred by petition, the mode in which it was to be exercised was neces- 
sarily left, in a measure, to the discretion and judgment of the common council. 
Evansville, etc., R. Co. v. City of Evansville, 15 Ind. 395. 

Under the said Evansville charter, the city was expressly authorized to borrow money 
to pay for stock subscribed, and power to determine time of payment, and to issue bonds, 
and other evidences of debt, was manifestly imphed ; and the power to borrow money 
carried with it the right to borrow wherever the money could be procured on the best 
terms, and if the railroad company saw proper to receive bonds, as cash, in payment of 
subscriptions, the transaction was proper, and not beyond the corporate powers of either 
city or company. Evansville, etc., R. Co. v. City of Evansville, 15 Ind. 395. 

Councilman— Interest as stockholder— Effect.— The fact, that at the time the peti- 
tion is presented to and acted upon by the council, a councilman is a stockholder, di- 
rector and officer of the railroad company, does not disqualify him to act upon the peti- 
tion, or the common council to pass an ordinance making the donation. Under the 
statute, donation bonds are not issued or withheld upon the judgment of the council. 
Mayor v. State, 57 Ind. 152, 162; City of Madison v. Smith, 83 Ind. 502, 511. 

Bonds— Commercial papers— Donation.— Bonds issued for the aid of railroads under 
this section, in the hands of a bona fide holder, for a valuable consideration, without 
notice, must be regarded as public securities, and are placed on a footing with bills of 
exchange. City of Mount Vernon v. Hovey, 52 Ind. 564; Gardner v. Haney, 86 Ind. 
17; City of Aurora v. West, 22 Ind. 88; New Albany, etc., Co. v. Smith, 23 Ind. 353; 
City of Bloomington v. Smith, 123 Ind. 41 ; Wilkinson v. City of Peru, 61 Ind. 1, 11 ; 
2 Elhott Railroads, § 882; Hainer Munic. Securities, §§ 251, 258. 

Donation defined — Conditions, etc.— The term "donation," used in this and the next 
succeeding section, means an absolute gift or grant, made without condition or consid- 
eration. Indiana, etc., R. Co. v. City of Attica, 56 Ind. 476; Wilkinson v. City of Peru, 
61 Ind. 1; Goddard v. Stockman, 74 Ind. 405; Irwin v. Lowe, 89 Ind. 540, 550. 

If the petition and donation are made upon conditions, or in consideration of au 



199 GOVERNMENT AND POWERS. § 201 

agreement upon the part of the railroad company to do certain things not required by 
the statute, the petition and ordinance founded thereon are unauthorized by law and void. 
The conditions and agreements can not be regarded as surplusage. Indiana, etc., R. 
Co. V. City of Attica, 56 Ind. 476; Wilkinson v. City of Peru, 61 Ind. 1. See cases 
to preceding note. 

Towiiships in appropriating aid to railroads may prescribe reasonable conditions, 
and make their subscriptions payable thereon. Bittinger v. Bell, 65 Ind. 445; Brocaw 
V. Board, etc., 73 Ind. 543; Goddard v. Stockman, 74 Ind. 400. 

Interest. — The common council has no power to fix the rate of interest upon the 
bonds donated if the petition does not name the rate of interest. Where the petition 
does not name the rate of interest, it will be construed as a petition for the donation of 
the sum named in the petition without interest. Mayor, etc., v. State, 57 Ind. 152. 

Under the former Evansville charter, in the absence of any provision in the charter 
of the city, as to the interest she may pay on borrowed money, her contracts would be 
governed, in this respect, by the general law of the state. Evansville, etc., R. Co. v. 
City of Evansville, 15 Ind. 395. 

Mandate — Injunction. — Mandate will lie to compel the issue of the bonds in a proper 
case ; and injunction will lie to prohibit the issue of the same when they ought not to 
be issued. Mayor, etc., v. State, 57 Ind. 152; City of Madison v. Smith, 83 Ind. 502; 
State V. Mayor, etc., 108 Ind. 74; Wilkinson v. City of Peru, 61 Ind. 1; City of Mount 
Vernon v. Hovey, 52 Ind. 563 ; 2 Elliott Railroads, §§ 850, 863, 874, 917. 

Where- a municipal corporation has a discretionary power, mandate will not lie; but 
where the duty is imperative it is otherwise. City of Madison v. Smith, 83 Ind. 502; 
2 Elhott Railroads, § 917. 

Upon a proper petition, it becomes the absolute duty of the council to issue the bonds. 
Where the performance of such an act becomes the absolute duty of a corporation, man- 
date is the proper, indeed the only remedy. Mayor v. State, 57 Ind. 152, 160 ; Wilkin- 
son V. City of Peru, 61 Ind. 1. 

¥*Tiere a petition is filed for the issue of bonds for aid to a certain railroad company, 
and an order of donation is thereupon made to said company, but before the issue of 
said bonds said company is consolidated with another, injunction will not lie, after the 
issue of said bonds without new petition and order to the consolidated company, at a 
suit of a tax-payer to restrain the collection of taxes assessed against him to pay interest 
on the bonds and to create a sinking fund for the payment of the bonds. City of Mt. 
Vernon v. Hovey, 52 Ind. 563. 

Where such donation of bonds has been made pursuant to a petition, and a tax has 
been levied to pay the interest on such bonds, and also to create a sinking fund to pay 
the principal, the collection of such tax can be enjoined by a tax-payer, not on grounds 
sufficient merely to enjoin the making of such donation, but only on grounds constitut- 
ing a valid legal defense to the payment of the bouds in the hands of the present hold- 
ers. Wilkinson v. City of Peru, 61 Ind. 1. 

Bonds, issuing- of— Injunction.— A citizen and tax-payer of a city by injunction may 
prevent an illegal appropriation of the funds of the city, or the creation of a debt which 
the authorities have no power to incur, or the issue of negotiable bonds which bona 
fide holders might enforce, and where they have been issued, but remain in the hands 
of one who received them with notice, may maintain a suit to restrain their transfer 
and to cancel them. City of Madison v. Smith, 83 Ind. 502, 509. 

Sinking' fund to pay bonds— Interest.— The common council may levy, and enforce 
the collection of, a special tax to pay the whole of the interest accrued, whether over- 
due or not, on the public railroad debt of the city, and may in addition to such levy to 
pay interest, add to such levy not less than five cents on the one hundred dollars of the 
assessed value, to create a sinking fund to liquidate the principal of such debt. And. 
where a levy for such purpose is made, it is not rendered illegal or void by the fact that 



§ 202 CITIES. 200 

it does not specify the proportion to be applied to the liquidation of each, and such fact 
is not ground to enjoin a collection of the tax. City of Aurora v. Lamar, 59 Ind. 400. 

Evans^ille charter — Railroads. — For questions arising upon the former Evansville 
charter, and act for the incorporation of railroads, with respect to city subscribing for 
stock, making donations, etc., in aid of railroads, see Evansville, etc., R. Co. v. City of 
Evansville, 15 Ind. 395. 

City of Aurora — Charter construed. — Where the charter of the city authorized a 
subscription of stock in a railroad corporation, on condition precedent that the railroad 
should iTin to such city, a railroad running through the city was, within the meaning 
of the condition in the charter, a railroad running to it. City of Aurora v. West, 9 
Ind. 74. 

Under said charter, where special authority was given to the city to subscribe stock 
to a railroad running to it, and it Avas not made a point in charter of such road, it could 
only have been made so by subsequent action of the directors of the railroad corpora- 
tion, and, until such action had been had, no absolute subscription of stock in such cor- 
poration could be made by such city. City of Aurora v. West, 9 Ind. 74. 

City of Lafayette— Charter construed.— The charter of the city of Lafayette did not 
authorize the corporate authorities to issue bonds to aid in the construction of railroads. 
City of Lafayette v. Cox, 5 Ind. 38. 

[Acts 1869 S., p. 97. In force May 4, 1869.] 

203. Aid to railroads, hydraulic companies, etc. — 1. Any city in- 
corporated under the general laws of this state, upon petition of a ma- 
jority of the resident freeholders of such city, may hereafter subscribe 
to the stock of any railroad, hydraulic company, or water-power run- 
ning into or through such city, or near the corporate limits of said 
city, or to make, on petition of the majority of the resident freeholders 
of such city, donations in money or the bonds of such city, to aid in 
the construction of any such railroad, hydraulic company, or water- 
power, subject, how^ever, to the limitations, direction and restriction 
named in the provisos to the sixtieth section of the act entitled ''An 
act to repeal all general laws now in force for the incorporation of 
cities, prescribing their powers and rights, and the manner in w4iich 
they shall exercise the same, and to regulate such other matters as 
properly pertain thereto," approved March 14, 1867 [§ 3612]. R. S. 
1894, § 3613. 

See preceding section and note. 

This section is not in conflict with or repealed by the next preceding section. City 
of Madison v. Smith, 83 Ind. 502. 

City, donation by — Liability as stockholder. — A city having subscribed to the stock 
of a railroad company, under the act of May 4th, 1869, authorizing cities to aid in the 
construction of railroads, is bound to the same hability that under § 5198, R. S. 1894, 
attaches to an ordinary stockholder in such company for labor done in the construc- 
tion of the railroad. Shipley v. City of Terre Haute, 74 Ind. 297, 299. 

In ascertaining the number of resident freeholders, so as to determine numerically 
whether a petition for a city to make a donation in city bonds, to aid in the construc- 
tion of a railroad, is signed by a majority, as required by the statute, all persons resi- 
dent within the city, and owning a freehold interest in land, must be counted. State v. 
City of Kokomo, 108 Ind. 74. 

Mandamus— Injunction.— The decision of the city council that such petition has or 
has not the requisite number of signatures is not conclusive, but the question is open to 



201 GOVERNMENT AND POWERS. § 203 

inquiry, either upon mandamus to compel, or injunction to prevent, action by the coun- 
cil. The rule is different where there is a right of appeal or the tribunal is strictly a 
judicial one. City of Madison v. Smith, 83 Ind. 502, 514. 

Estoppel. — The records of a city council, denying a petition for aid to a railroad, 
must be presumed to have come to the knowledge of the railroad company, and it can 
not successfully aver, by way of estoppel to a suit of a tax-payer to cancel bonds issued 
without authority afterward as such aid, that it has, on faith in their validity, issued 
stock to the city and entered into contracts for the construction of its road. City of 
Madison v. Smith, 83 Ind. 502, 519. 

Petition — Discretion and action of council.— Where a city council, upon petition, 
refuses to subscribe for the stock of a railroad company, under this section it has no 
power, after the lapse of two years, to again consider the same petition and grant its 
prayer. City of Madison v. Smith, 83 Ind. 502, 511. 

Where a city council has authority to decide upon the sufficiency of such a petition, 
and its decision is final, it is so, whether for or against the petition. City of Madison v. 
Smith, 83 Ind. 502, 512. 

TVTiere the action of the common council in voting aid to a railroad company depends 
upon discretion, councilmen who are stockholders in the railroad company are not 
competent to act, and a grant of aid carried by their votes will not be valid. Under 
this statute, upon the filing of a sufficient petition, the council have no discretion to re- 
fuse to grant petition, and may be mandated to do so, and, therefore, the interest of a 
councilman does not disqualify him to act upon the petition. City of Madison v. Smith, 
83 Ind. 502, 513 ; Mayor v. State, 57 Ind. 152, 162. 

[Acts 1872 S., p. 49. In force December 14, 1872.] 

203. Aid to roads in other states, by border counties, cities and 
townships. — 1. Any county in this state bordering on the state line 
or rivers forming state boundaries, and any township therein, may, 
upon a vote of the majority of the legal voters thereof, and any city 
in such county may, upon petition of a majority of the resident free- 
holders thereof to the city council, subscribe to the capital stock of 
any railroad company, to aid in the construction of its road opposite 
such county in any other state or to form connection with other rail- 
roads in such counties. R. S. 1894, § 5377. 

204. Bonds by border city.— 2. Any city incorporated under the 
general laws of this state, and situate in any county bordering on the 
state line, or river forming the state boundary, may issue the bonds 
of such city, running for a period of time not exceeding twenty years, 
and bearing an annual interest not exceeding eight per cent., in liqui- 
dation of all subscriptions to the capital stock of any railroad made 
under the provisions of this act. R. S. 1894, § 5378. 

See ante, §§ 146 and 201, et seq., and notes. 

205. Petition to city. — 12. Whenever a petition shall be pre- 
sented to the city council of any city incorporated under the general 
laws of this state, and situate in any county bordering on the state line, 
or any river forming the state boundary, signed by a majority of the 
resident freeholders of such city, asking said council to make an ap- 
propriation of money (stating the amount), to aid a railroad company 



§ 206 CITIES. 202 

therein named, and coming under the provisions of the first section 
of this act [R. S. 1894, § 5377] , by subscribing to the capital stock of 
such company, to aid in constructing a railroad from an adjoining state 
to such city, or to the state line, ortoariver forming the state boundary 
bordering the county in which such city is situated, or to connect with 
any other railroad in said city or near the corporate limits of such city, 
it'shall be the duty of such council, after being satisfied that such peti- 
tion has been properly signed by the requisite number of resident 
free-holders of such city, to cause the same to be entered at full length 
upon its records. R. S. 1894, § 5388. 

206. Duty of council. — 13. Such city council shall take said peti- 
tion under advisement, and, thereupon, make an order directing the 
mayor of such city to subscribe to the capital stock of such railroad 
company, in the proper corporate name of such city, the amount 
specified in such petition for the purposes aforesaid; which subscrip- 
tion shall be made upon and subject to such provisions and conditions 
as a majority of such city council and mayor may deem necessary to 
protect the best interests of such city. R. S. 1894, § 5389. 

207. Bonds. — 14. It shall be the duty of such city council to issue 
the bonds of such city as provided for in section 5 of this act (R.S. 1894, 
§ 5381), to an amount sufficient to liquidate said subscription to the 
capital stock of such railroad company aforesaid, and to pay the 
same, or the proceeds thereof, in such liquidation, from time to time, 
as the work upon such railroad progresses or the conditions of such 
subscription to the capital stock thereof require. R. S. 1894, §5390. 

208. Interest — Sinking fund. — 15. Such city council shall provide 
for the payment of the annual interest of such bonds, and also pro- 
vide a sinking fund for the payment of the principal thereof at ma- 
turity, by levying a special tax therefor upon the real and personal 
property in such city subject to taxation for state, county and munici- 
pal purposes; which tax shall be placed upon the tax duplicate of such 
city, and collected as other taxes are collected for city purposes. 
R. S. 1894, § 5391. 

See ante, § 146, and § 214, post. 

209. Payment of aid. — 16. After the money authorized by this 
act to be subscribed and appropriated shall have been levied and col- 
lected, or city bonds issued as aforesaid, the railroad company for 
whose aid the same shall have been levied and collected, or city bonds 
so issued, having fully done, performed and complied with all the 
provisions and conditions upon which such subscriptions were made 
and connected therewith in good faith, shall be entitled to demand 
and have a full compliance with the terms of such subscriptions upon 
the part of such counties, townships or cities, as the case may be, to 
the full intent and meaning of this act; and such railroad company, 
or any one of said petitioners, or any tax-payer of such county, town- 
ship or city, as the case may be, may compel the same to be done by 
m.andate against such county, township or city. R. S. 1894, § 5392. 



203 GOVERNMENT AND POWERS. § 210 

[Acts 1867, p. 33. In force March 14, 1867.] 

210. Jurisdiction beyond limits. — 54. For removal and abate- 
ment of nuisances; to carry out and enforce sanitary regulations; for 
the apprehension of disorderly persons, vagrants, common prosti- 
tutes, and their associates; to exact license money from all persons 
licensed to retail intoxicating liquors by county or state authority; 
and to regulate all places where intoxicating liquors are sold to be 
used on the premises, — the common council shall have jurisdiction 
two miles beyond the city limits. R. S. 1894, § 3615. 

See ante, § 124. 

Jurisdiction. — The legislature has power to designate the limits over which the juris- 
diction of municipal corporations shall extend, and its judgment on this question is con- 
clusive. Lutz V. City of Crawfordsville, 109 Ind. 466; Emerich v. City of Indianapolis, 
118 Ind. 279. 

Cemeteries. — Under this clause, the authorities of a city have no power to prohibit 
the establishment of cemeteries or burying grounds outside of the city limits, nor have 
they any control over them when established. Begein v. City of Anderson, 28 Ind. 79. 
See subsequent legislation, ante, § 124, clause 5, and j)os^, §§ 1096-1104. 

Houses of ill fame. — No power is conferred on the common council of a city to im- 
pose a penalty upon any person for visiting or residing within a house of ill fame out- 
side the corporate limits of the city. Robb v. City of Indianapolis, 38 Ind. 49. 

For the provisions of the criminal law upon this subject, see R. S. 1894, §§ 2079, 2080, 
2089. 

Sanitary regfulations. — The questions of public health and safety are proper subjects 
of municipal legislation, and cities may by ordinance carry out and enforce sanitary 
regulations. Skaggs v. City of Martinsville, 140 Ind. 476. 

Under the power to enforce sanitary regulations a city by ordinance may provide 
penalties against owners or occupants of lots for permitting water from any flowing 
well or spring to flow upon any of the streets or alleys in the city, and the enforcement 
of such an ordinance does not constitute the taking of property, but is simply a require- 
ment that the property -owners shall so control their property as not to impair the use- 
fulness of the public streets and jeopardize the public health. Skaggs v. City of Mar- 
tinsville, 140 Ind. 476. 

Sale of intoxicating" liquors— Reg-ulation.— An incorporated city has power, within 
its corporate limits and for two miles beyond, to regulate all places where intoxicating 
liquors are kept for sale to be used on the premises, and to require a license from all 
keepers of such places, as well from those who have a license from the state or county 
as those who have not. Lutz v. City of Crawfordsville, 109 Ind. 467 ; Emerich v. City 
of Indianapolis, 118 Ind. 279. See ante, § 124, clause 13. 

Nuisance— Abatement of. — The legislature has power to invest municipal corpora- 
tions with authority to abate public nuisances without resorting to judicial proceed- 
ings. Baumgartner v. Hasty, 100 Ind. 575. 

A municipal corporation has no power to forfeit the property of a citizen, but the 
abatement of a public nuisance by the tearing down of a wooden building, which con- 
stitutes a nuisance, is not a forfeiture of property. Baumgartner v. Hasty, 100 Ind. 575. 

A wooden building is not in itself a nuisance, but it may become so when it endangers 
surrounding buildings, and a municipal corporation may enact an ordinance providing 
for the summary removal of such building. Baumgartner v. Hasty, 100 Ind. 575. 

The common council can not declare that to be a nuisance which in fact is not. City 
of Evansville v. Miller, 146 Ind. 613; Bank v. Sarlls, 129 Ind. 201; Baumgartner v. 
Hasty, 100 Ind. 575. 



§ 211 CITIES. 204 

Concurrent remedies. — The power of municipal corporations to declare what shall 
constitute a nuisance and abate the same and the power to resort to the courts for that 
purpose are concurrent remedies, and the choice and interrupted prosecution of one 
excludes the exercise of the other. American etc., Co. v. Town of Bates ville, 189 Ind. 
77. 

Action to remove — Proceeding" in rem. — The power to declare what shall constitute 
a nuisance, and prevent, abate and remove the same is a proceeding in rem, not in 
personam, and must be exercised by and through ordinances of a general character 
affecting alike all the property or all the business of all the citizens under like con- 
ditions. American, etc., Co. v. Town of Batesville, 139 Ind. 77. 

T^^lere a summary method given a town for abatement of a nuisance confers no right 
not possessed at common law, it does not preclude a resort to the courts. American, 
etc., Co. V. Town of Batesville, 139 Ind. 77. 

211. By-laws — Penalties, — 56. The common council shall have 
power to make other by-laws and ordinances not inconsistent with the 
laws of this state, and necessary to carry out the objects of the cor- 
poration, and to enforce the observance of all by-laws and ordinances, 
by enacting penalties for their violation not exceeding one hundred 
dollars for any offense; which may be recovered in an action at law, 
with costs, as they may deem right and proper. R. S. 1894, § 3616. 

See ante, § 118, and j?os^, §1383 and notes. 

Powers conferred, — The general power conferred on common councils by this section 
authorizes the enactment of such by-laws and ordinances only as are necessary to the 
complete exercise of the corporate powers expressly or impliedly granted to cities. 
Bessonies v. City of Indianapohs, 71 Ind. 189. 

The common council of a city, incorporated under the general law of this state for 
the incorporation of cities, is not authorized to pass ordinances which contravene the 
express provisions, and the clear implications of the statute under which the city is in- 
corporated. Benjamin V. Webster, 100 Ind. 15. 

This clause does not authorize common councils of cities to enact ordinances to license 
and regulate the establishment of private hospitals erected within the city limits. 
Bessonies v. City of Indianapolis, 71 Ind. 189. 

The common council under this clause had no power to create a fire board, as the 
same was unauthorized and impliedly forbidden by the statute, the ordinance assum- 
ing to invest such fire board with powers and duties which the statute imposed upon 
the common council, or upon the chief engineer of the fire department, and which 
could not be delegated. Benjamin v. Webster, 100 Ind. 15. 

Pawnbrokers. — This clause did not authorize the common council to enact an ordi- 
nance making it unlawful for any person to carry on business of a pawnbroker without 
having first procured a license, and to regulate the business and place of business of 
pawnbrokers. Shuman v. City of Ft. Wayne, 127 Ind. 109. See subsequent legislation, 
post, § 1148. 

Fire protection. — The rule has always been that a municipal corporation has the 
inherent power to enact ordinances for the protection of the property of its citizens 
from fire. The exercise of such a power * * ♦ ig the exercise of a power long pos- 
sessed by municipal corporations and closely connected with the purposes for which 
such corporations are organized. Corporation of Bluffton v. Studabaker, 106 Ind. 129; 
Baumgartner v. Hasty, 100 Ind. 575, 580; Kaufman v. Stein, 138 Ind. 49; Miller v. City 
of Valparaiso, 10 App. 23. 

Cities may regulate or prohibit the keepiitg of vvithin the corporate hmits, articles lia- 



205 TAXATION. § 212 

ble to be dangerous on account of fire. Clark v. City of South Bend, 85 Ind. 276, 278; 
City of Richmond v. Dudley, 129 Ind. 112, 114. 

A city ordinance placing restrictions upon the keeping and storing of inflammable or 
explosive oils is invalid which fails to specify the rules and conditions to be observed in 
such business, and which does not admit of the exercise of the privilege by all citizens 
alike, who will comply with such rules and conditions ; but which does admit of the 
exercise of an arbitrary discrimination by the municipal authorities, between citizens 
who ^dll so comply. City of Richmond v. Dudley, 129 Ind. ll2, 116. 

Obstruction of streets,— The wrongful obstruction of a public street or sidewalk of a 
city is a misdemeanor, punishable under the criminal law of the state, and a city can 
not enact an ordinance prescribing a penalty for any one who obstructs such street. 
City of Indianapolis v. Higgins, 141 Ind. 1,4. 

Validity of ordina^nce— When not in question. — An action to recover the penalty 
prescribed for the violation of an ordinance does not necessarily call in question the 
vahdity of the ordinance. Griffee v. Town of Summitville, 10 App. 332. 

Misdemeanor— Invalidity of ordinance.— Where an act is made a misdemeanor 
punishable under the criminal law of the state, a city or town can not enact an ordi- 
nance prescribing a penalty for the same offense. City of Indianapolis v. Higgins, 141 
Ind. 1; City of Indianapolis v. Huegele, 115 Ind. 581; Jett v. City of Richmond, 78 
Ind. 316. 

By the provisions of § 10 of the metropolitan police act of 1883 (R. S. 1894, § 3726), 
the interfering with or interrupting a member of the police force, when making an 
arrest, is made a criminal offense, and a city ordinance covering the same ground is 
ineffective and void. City of Indianapolis v. Huegele, 115 Ind. 581. 

The statute prohibiting towns and cities from making acts punishable by ordinance 
which are made public offenses punishable by the state does not apply to an ordinance 
providing a punishment for selling intoxicating liquors without first procuring a license 
from the town or city, that not being an offense under the statutes of the state. City of 
Frankfort v. Aughe, 114 Ind. 77; Clevenger v. Town of Rushville, 90 Ind. 258; Zeiler 
V. City of Crawfordsville, 90 Ind. 262. 

Prior to the enactment of said statute cities and towns could be authorized to provide 
by ordinance for the punishment of an act already punishable by the criminal law of 
the state. Williams v. City of Warsaw, 60 Ind. 457 ; Ambrose v. State, 6 Ind. 351 ; Sloan 
v. State, 8 Blackf . 361 ; Waldo v. Wallace, 12 Ind. 569. 

ARTICLE 3.— TAXATION. 

SEC. SEC. 

212. General and specific taxes. 216. Cities governed by this act — Payment 

213. Equalization — Fixing rate — Refund- of taxes — Assessment and equaliza- 

ing. tion. 

214. Sinking fund tax. 217. Time to pay taxes — Delinquency — Pen- 

215. Temporary loans. alty. 

[Acts 1873, p. 57. In force March 7, 1873. J 

212. General and specific taxes. — 58. The common council shall 
have power to levy, and cause to be assessed and collected, in each 
year, an ad valorem tax of not more than one per centum for general 
purposes, on all property subject to state and county taxation within 
such city, and also upon the stocks of all free banks, insurance 
companies, and other joint stock companies doing business within 
such city; the said tax to be assessed and levied upon the stock of 
each individual shareholder of said companies and banks, whether 



§ 212 CITIES. 206 

such shareholder reside within such city or elsewhere. The cities and 
incorporated towns through or into which a railroad may pass may 
assess any railroad building, fixtures, and machinery connected there- 
with, within the city or town limits, on the same basis and the same 
manner that the like property of natural persons is assessed, and col- 
lect the taxes thereon as other taxes are collected; but the rolling ma- 
chinery used in operating the road shall be deemed to be embodied in 
the taxes by the mile. And also a specific tax on omnibuses, or any 
carriages and other vehicles used and run for passengers for hire, un- 
less the same be licensed; and on each dog owned by any resident of 
such city of not more than two dollars, and on any bitch owned by 
any resident of such city of not more than five dollars; and also a poll- 
tax not exceeding one dollar on every male inhabitant, sane and not a 
pauper, of the age of twenty-one years and not exceeding fifty years, 
residing therein: Provided, That any incorporated city having a popu- 
lation exceeding twenty thousand shall have power to levy, and cause 
to be assessed and collected, in each year, an ad valorem tax of not 
more than one and one-half per centum for general purposes on all 
property within such city returned for taxation by the city assessor, 
and upon stocks of incorporations as before provided. There may also 
be levied and collected, annually, an additional tax to pay the whole 
interest of the public debt due from said city. [As amended Acts 1899, 
p. 512. In force March 6, 1899.] R. S. 1894, § 3617. 

See Taxation, R. S. 1894, ch. 108 (§ 8408, ^et seq.), and Burns' Supp. ;i897, ch. 108 
(§ 8411, et seq.) ; Acts 1899, pp. 422, 430, 497, 516. 

General laws. — Some of the provisions of the statutes compiled under this title, and 
decisions cited thereunder, may not now be applicable. The general laws of the state 
upon the subject of taxation control municipal taxation so far as applicable. See post, 
§216. 

Constitutional law— Municipal taxation. — Section 1, article 10, of the state consti- 
tution (E. S. 1894, § 193), providing that the " general assembly shall provide by law 
for a uniform and equal rate of assessment and taxation," etc., has no reference to 
municipal taxation; but see subsequent notes. Hamilton v. City of Ft. Wayne, 40 Ind. 
491; City of Richmond v. Scott, 48 Ind. 568; Bank, etc., v. City of New Albany, 11 
Ind. 139 ; Anderson v. Kerns Draining Co., 14 Ind. 199 ; Thomasson v. State, 15 Ind. 449. 

Said provision of the constitution does not mean that the rate of assessment shall be 
uniform and equal for all purposes throughout the state, but does require a uniform rate 
throughout the locality in which the particular tax is levied ; if for state purposes, then 
in all parts of the state alike; if for county purposes, in the entire county ; and so in 
township, town or city, for the local purposes of each. Loftin, etc., v. Citizens' Nat. 
Bank, 85 Ind. 341, 346; Robinson, etc., v. Schenck, 102 Ind. 307; Bright v. McCullough, 
27 Ind. 223. 

The taxing power of the state can not be made the means of levying municipal tax6s 
upon a fraction of a class, and of bestowing the taxes so levied upon a small fraction 
of the citizens. Henderson, etc., v. London, etc., Co., 135 Ind. 23. 

It is only the taking of specific pieces of property of an individual, by virtue of the 
right of eminent domain, that is prohibited by the constitution. The prohibition does 
not extend to the taxing power. City of Aurora v. West, 9 Ind. 74; City of Logans- 
port v. Seybold, 59 Ind. 225, 228; Board, etc., v. State, 147 Ind. 476. 

Statute construed— Executors— Administrators, etc. — This section must be con- 
strued according to its spirit and reason, rather than its exact words, so that choses in 



207 TAXATION. § 212 

action held by resident executors, administrators and guardians of non-residents, shall 
be exempt from taxation by all cities. McDougal v. City of Brazil, 83 Ind. 211. 

Assessment — Extending* time of. — Under a former incorporating act, the council had 
discretionary power to extend the time for assessment when the circumstances required 
it. Tousey v. Bell, 23 Ind. 423. 

Exemptions— Construction of statute.— The general policy of the state is to subject 
all private property to the burden of taxation, and hence, statutes exempting property 
from taxation must be strictly construed. City of Indianapohs v. Grandmaster, 25 Ind. 
518; Trustees, etc., v. Ellis, 38 Ind. 3; Eead v. Yeager, etc., 104 Ind. 195; Conklin v. 
Town of Cambridge City, 58 Ind. 130; City of South Bend v. University, etc., 69 Ind. 
344; State v. City of Indianapolis, 69 Ind. 375; Common Council, etc., v. McLean, 8 
Ind. 328. 

Same— Constitutional law^— Exemption favor of widows.— A clause of the statute 
of 1872, which exempts "the property to the amount of five hundred dollars, of a widow 
or unmarried female," etc., is unconstitutional and void; such exemption is not for 
" charitable purposes," within the meaning of g 1 of article 10 of the state constitution 
(R. S. 1894, § 193). State v.City of Indianapolis,69 Ind. 375 ; Warner v. Curran,75 Ind. 309. 

Assessments for public improvements— Municipal property.— A municipal cor- 
poration is liable for its proportion of the cost of local improvements assessed against 
it, even though the statute exempts public property from taxation. Warner v. City of 
New Orleans, 87 Fed. Eep. 829. 

Tax levy — Lien. — Municipal corporations in levying taxes are instrumentalities of 
government, and taxes levied by them are, in legal effect, levied by the state, so that 
the lien for such taxes is of equal rank and priority to that of taxes levied for state or 
county purposes. Justice v. City of Logansport, 101 Ind. 326, 327; Eobinson v. 
Schenck, 102 Ind. 307, 312; Jones v. Foley, 121 Ind. 180, 183; City of Logansport v. 
McConnell, 121 Ind. 416, 419. 

Double assessment— Tender. — Relief from a double assessment can not be had until 
a tender of the taxes legally assessed has been made. City of Logansport v. McCon- 
nell, 121 Ind. 416. 

Property subject to tax levy. — Cities may levy a tax on all property within the cor- 
porate limits subject to state and county taxes. Toledo, etc., R. Co. v. City of Lafay- 
ette, 22 Ind. 262 ; City of Logansport v. Seybold, 59 Ind. 225 ; Stilz v. City of Indianapo- 
lis, 81 Ind. 582; Seward v. City of Rising Sun, 79 Ind. 351, 353; Hilgenberg v. Wilson, 
55 Ind. 210. 

Personal property — Situs. — Personal property, which exists in a substantial and cor- 
poral form, must have an actual situs, and is taxable wherever that situs is ; but per- 
sonal property of an intangible character, which exists in rights of action, such as debts, 
bank stocks, etc., has no situs, other than the domicile of the owner, and is therefore 
taxable only at the place of his residence. Powell v. City of Madison, 21 Ind. 335 ; Ev- 
ersole v. Cook, 92 Ind. 222 ; City of New Albany v. Meekin, 3 Ind. 481 ; City of Evans- 
ville v. Hall, 14 Ind. 27 ; Rieman v. Shephard, 27 Ind. 288; Standard Oil Co. v. Bache- 
lor, 89 Ind. 1 ; Standard Oil Co. v. Combs, 96 Ind. 179. 

Personal property, in general, is assessed where its owner resides ; but the situs of 
such property, for the purpose of taxation, does not always or necessarily follow the 
domicile of the owner. Buck v. Miller, 147 Ind. 586 ; Eversole v. Cook, 92 Ind. 222. 

The test as to where the right to tax property exists is the place of its location and 
use ; the place where, if a security or obligation, it is a credit, not where it is a debit. 
Buck V. Miller, 147 Ind. 586. 

Where notes or other choses in action are in the state temporarily, or in the hands 
of an attorney for collection, and the credits thereof are owned and held in anotlier 
state by a non-resident of this state, the notes or bonds so owned and held can not be 



§ 212 CITIES. 208 

taxed here, although secured by hen on property in this state. Buck v. Miller, 147 
Ind. 586. 

Ships at sea are regarded as incapable of acquiring an actual or permanent situs. This 
is true of all other water-craft. Such property is to be listed for taxation at the place of 
the owner's residence, without regard to its actual situation. Cook v. Town of Port 
Fulton, 106 Ind. 170. Contra, Eversole, etc., v. Cook, 92 Ind. 222; City of New Albany 
V. Meekin, 3 Ind. 481 

Funds of non-residents in hands of a receiver. — The funds of an insolvent mutual 
benefit assessment society in the hands of a receiver in this state are subject to taxation 
in the county where they are kept on deposit by such receiver, although the funds had 
been collected in other states in which the company also did business, and turned over 
to the Indiana receiver by orders of their respective courts, and were to be distributed 
to claimants, many of whom were non-residents. Schmidt v. Failey, 147 Ind. 150. 

Name wrong" does not vitiate. — The fact that real estate is assessed for taxation in 
the name of a person other than the owner does not invalidate the assessment. Stilz 
V. City of Indianapohs, 81 Ind. 582; Peckham v. Milhkan, 99 Ind. 352; Schrodt v. Dep- 
uty, 88 Ind. 90. 

Bonds of United States. — The bonds of the United States, issued and sold by the 
government of the United States, are not subject to taxation under the laws of the state. 
Whitney v. City of Madison, 23 Ind. 331 ; Wright v. Stilz, 27 Ind. 338; City of Madison 
v. Whitney, 21 Ind. 261. 

United States property not subject to taxation.— A state has no power to tax the 
property of the United States within its limits. Wisconsin R. Co. v. Price County, 133 
U. S. 496. 

Life insurance policies. — Life insurance policies under the present statute are not 
subject to taxation. State Board Tax Comm'rs v. Holliday, 150 Ind. 216. 

Notes — Mortg"ag'es, etc. — It is the credit, not the debt, to which value attaches, and 
which is taxable, and it makes no difference, for the purposes of taxation, where the 
debtor lives or where the debt was contracted, provided only that the note or other evi- 
dence of the amount due the creditor is itself within the jurisdiction of the state. 

Where a business of buying and selling property, making loans and investments, and 
collecting and reloaning the money is conducted, and the notes and mortgages so used 
are retained in this state they will be subject to taxation in this state, although the 
owner thereof may have his residence in another state, whether such business be con- 
ducted by him in person or by an agent. Buck v. Miller, 147 Ind. 586. 

Hackneymen — License — Ordinance — Validity. — An ordinance of a municipal cor- 
poration regulating the running of hacks, by requiring a license, is a proper and reason- 
able exercise of municipal power, and is fully implied and authorized by this section of 
the statute as well as others. Scudder v. Hinshaw, 134 Ind. 56. 

Lands annexed. — When the territorial boundary of a municipal corporation is ex- 
tended so as to include new and additional property, such property is thereby subjected 
to taxation in like manner and to the same extent as the property previously included 
within the corporation, and this is so even though such taxation be for the purpose of 
paying pre-existing debts of the corporation. Lake Shore, etc., R. Co. v. Smith, 131 
Ind. 513; Stilz v. City of Indianapolis, 55 Ind. 515; City of Logansport v. Seybold, 59 
Ind. 225; Town of Cicero v. Sanders, 62 Ind. 208; Stilz v. City of Indianapolis, 81 
Ind. 582. 

Alleg"ed annexation — Recovery of taxes.— Where the plat and annexation are void, 
taxes assessed and collected by the city are illegal, and may, there being no estoppel, 
be recovered back, unless barred by the six years' statute of limitations, which begins 
to run with each payment. City of Indianapohs v. Patterson, 112 Ind. 344; City of 
Peru V. Bearss, 55 Ind. 576. 

Bank and other corporation stock.— There are, under our constitution and laws, 



209 TAXATION. § 212 

two recognized modes of taxing the capital stock of corporations. One is by an assess- 
ment against the corporation itself by name for the whole amount of its capital stock, 
which assessment the corporation pays and charges up to stockholders, etc. The other 
is where the stockholders are separately and severally listed by the assessor for the 
amount of their capital stock. The latter is the mode to be adopted, in all cases, where 
the statute does not otherwise' provide. Whitney v. City of Madison, 23 Ind 331; 
Seward v. City of Rising Sun, 79 Ind. 351 ; City of Evansville v. Hall, 14 Ind. 27 ; Con- 
well V. Town of Connersville, 15 Ind. 150; City of Richmond v. Scott, 48 Ind. 568; City 
of Madison v. Whitney, 21 Ind. 261 ; Small v. City of Lawrenceburg, 128 Ind. 231. See 
general tax law 1891, R. S. 1894, §§ 8408-8677. 

Bank of State of Indiana — Capital stock — Exemption.— The provision of the charter 
of the Bank of the State of Indiana that ''the capital stock of said bank or branches 
shall not be taxed for municipal purposes" was constitutional, and money, notes and 
real estate of the bank and its branches were exempt from municipal taxation. Bank 
of State, etc., v. City of New Albany, 11 Ind. 139 ; State Bank v. Brackenridge, 7 Blackf. 
395; State Bank, etc., v. City of Madison, 3 Ind. 43; President, etc., v. Bank of State, 
etc., 16 Ind. 105; King v. City of Madison, 17 Ind. 48; Craft, etc., v. Tuttle, 27 Ind. 332. 

Under the act of March 11, 1861, cities were authorized to collect taxes on the shares of 
stock in the free banks located in a city, whether the owners of the stock resided 
therein or not. DePauw v. City of New Albany, 22 Ind. 204. See City of Madison v. 
W^hitney, etc., 21 Ind. 261. 

The act of 1867, exempting bank stocks from municipal taxation, applied to cities or- 
ganized under special charters as well as those under the general law for the incorpora- 
tion of cities. City of Evansville v. Bayard, 39 Ind. 450. 

Under the act of March 4, 1873, cities could levy taxes on shares of bank stock at the 
same rate as on real and personal property within the city, though there were still in 
existence branches of the Bank of State of Indiana, the shares of stock of which are not 
subject to municipal taxation. City of Richmond v. Scott, 48 Ind. 568. 

Under the charter of the city of Madison bank stocks should be assessed, for munici- 
pal taxation, in the names of the individual stockholders, and not in the name of the 
bank. City of Madison v. Whitney, etc., 21 Ind. 261. 

If bank stock is assessed in the name of the corporation instead of being assessed to 
the owners of the stock, the lien for taxes will not be thereby affected. Small v. City 
of Lawrenceburgh, 128 Ind. 231. 

Forelg'n corporation. — A city has the right to tax its citizens for stock ow^ned by them 
in a foreign railroad company, although a tax has been paid thereon in the state where 
the corporation is located. Seward v. City of Rising Sun, 79 Ind. 351. 

Persons moving" into city. — Persons moving into a city at any time before assess- 
ments are made for any year, are liable to be assessed for such year. Hilgenberg v. 
AVilson, 55 Ind. 210. 

Public debt— Interest — Tax.— The common council may levy and enforce the collec- 
tion of a special tax to pay the whole of the interest accrued, whether overdue or not, 
on the public debt of the city. City of Aurora v. Lamar, 59 Ind. 400; Stilz v. City of 
Indianapolis, 81 Ind. 582. 

Railroad aid — Taxation. — For the purpose of a township tax in aid of a railroad, an 
incorporated city within the limits of a civil township is a part of such township, the 
qualified voters for the city are voters of the township, and the taxable property within 
the city is also taxable property within the township, and is subject to taxation for 
township purposes. Scott v. Hansheer, 94 Ind. 1. 

Tax to build and repair gravel roads— County a taxiuo* district.— The whole coun- 
ty, under the laws for the building and keeping in repair of free gravel roads and turn- 
pikes, is a taxing district, and the property within a muuicipal corporation, and situ- 

ClT. AND To.— 14 



§ 212 CITIES. 210 

ated within such taxing district, is subject to taxation for the building and repair of 
gravel roads and turnpikes, although such roads are wholly without the limits of the 
corporation. Byram v. Board, etc., 145 Ind. 240. 

Farm lands. — For cases construing various statutes from time to time in force, but 
repealed, exempting farm lands from taxation by cities, see Blaine v. Bailey, 25 Ind. 
165; Hamilton v. City of Ft. Wayne, 40 Ind. 491; Stilz v. City of Indianapohs, 55 Ind. 
615; City of South Bend v. University, etc., 69 Ind. 344; Stilz v. City of Indianapohs, 
81 Ind. 582; Kalbrier v. Leonard, 34 Ind. 497; Leeper v. City of South Bend, 106 Ind. 
375; Taberv. Graf miller, 109 Ind. 206; Dickerson v. Franklin, 112 Ind. 178; City of 
South Bend v. Cushing, 123 Ind. 290; Thomas v. Town of Butler, 139 Ind. 245; Conklin 
V. Town of Cambridge City, 58 Ind. 130. 

Upon the right to recover taxes illegally assessed under statutes exempting farm lands 
from city taxation, see Fleming v. City of Indianapolis, 6 App. 80 ; Leonard v. City of 
Indianapohs, 9 App. 262. 

llleg'al taxes— Injunction.— If illegal taxes are assessed and threatened to be col- 
lected, the appropriate remedy to restrain their collection is. by injunction. Toledo, 
etc., R. Co. V. City of Lafayette, 22 Ind. 262; Greencastle, etc., v. Black, 5 Ind. 557; 
City of Lafayette v. Jenners, 10 Ind. 70; City of Peru v. Bearss, 55 Ind. 576; City of 
Delphi V. Startzman, 104 Ind. 343 ; City of Delphi v. Bowen, 61 Ind. 29. 

Irreg"ularities— Injunction. — Irregulaiities, or the neglect of mere forms in the as- 
sessment of taxes, where there is authority to levy the tax, will not be sufficient cause 
to enjoin the collection thereof. Jones v. Summer, 27 Ind. 510; Eicketts v. Spraker, 77 
Ind. 371; Reynolds v. Bowen, 138 Ind. 434; Florer v. McAffee, 135 Ind. 540; City of 
Delphi V. Bowen, 61 Ind. 29. 

Part valid and unpaid— Tender. — An injunction will not be granted against the col- 
lection of taxes, if any part thereof be valid and unpaid, and the complaint shows no 
offer or tender to pay them. Stiltz v. City of Indianapolis, 81 Ind. 582 ; City of Logans- 
port V. Case, 124 Ind. 254; City of South Bend v. University, etc., 69 Ind. 344; Florer 
V. McAffee, 135 Ind. 540; Buck v. Miller, 147 Ind. 586. 

An injunction will not lie to prevent the execution of a deed on an invalid sale for 
taxes, unless there has been a tender and offer to pay the taxes legally due. The tender 
must be kept good by bringing the amount into court for the benefit of the purchaser. 
City of Logansport v. Case, 124 Ind. 254. 

Complaint — When insufficient. — A complaint to enjoin the collection of taxes, which 
fails to aver that such taxes have been placed upon the duphcate, and that it is in the 
hands of the proper officer for collection, is bad. Worley v. Harris, 82 Ind. 493. 

Complaint — When sufficient. — A complaint to enjoin the sale of lands for taxes, 
which shows that the taxes have been paid, and also that the former owner against 
whom the taxes were assessed had and has abundant personal property subject to dis- 
tress and sale for taxes, shows two good reasons for the injunction. City of Logans- 
port V. Carroll, 95 Ind. 156. 

Same. — A complaint against an incorporated town and the marshal thereof to stop 
the sale of the plaintiff's property for taxes, alleging the payment of all taxes assessed 
against him, including the year 1879 ; that in January, 1880, after such payment, the 
trustees of the town placed an additional tax on the duplicate against him eight years 
preceding ; that he had paid all taxes lawfully assessed against him, and that the ad- 
ditional assessment was consequently illegal and void, was good on demurrer. Scott 
V. Town of Knightstown, 84 Ind. 108. 

Curative act. — When an illegal assessment of taxes has been rendered legal by a 
curative statute, the collection of such taxes can not subsequently be enjoined. John- 
son V. Board, etc., 107 Ind. 15. 

Railroads — State board of equalization. — Under the general tax law of 1891, the 
state board of equalization has exclusive authority to value and assess the railroad 



211 TAXATION. §213 

property denominated "railroad track" and "rolling stock." City authorities must 
take the valuation of the right of way from the state board of equalization. Pfaff, etc., 
V. Terre Haute, etc., R. Co., 108 Ind. 144; Cleveland, etc., R. Co. v. Backus, 13-3 Ind. 
513; Httsburgh, etc., R. Co. v. Backus, 133 Ind. 625. 

Respecting the powers of the state board of equaUzation relating to the valuation 
and assessment of the property of railroad, telegraph and express companies, under the 
general tax law of 1891, see Pfaff, etc., v. Terre Haute, etc., R. Co., 108 Ind. 144; Cleve- 
land, etc., R. Co. V. Backus, 133 Ind. 513; Pittsburgh, etc., R. Co. v. Backus, 13S Ind. 
625; Western U. Tel. Co. v. Taggart, 141 Ind. 281; Western U. Tel. Co. v. Hen- 
derson, 68 Fed. Rep. 589; Western U. Tel. Co. v. Atty .-General, 125 U.S. 530; Pull- 
man, etc., Co. V. Hayward, 141 U. S. 36; Pittsburgh, etc., R. Co. v. Backus, 154 U. S. 
421; Cleveland, etc., R. Co. v. Backus, 154 U. S. 439; State v. Adams Express Co. 144 
Ind. 549; Evansville, etc., R.Co. v. AVest, 139 Ind. 254. 

213. Equalizatiou — Fixing rate — Eefunding. — 59. The common 
council, together with the clerk and assessor, shall constitute the 
board of equalization of such city, and shall within one month after 
the assessment-roll has been returned, at a stated meeting thereof (of 
which at least two weeks' notice shall be given), hear and decide all 
complaints in relation thereto, and shall equalize the same as right 
and justice may require, and shall have the power to equalize the val- 
uations made by such assessor, either by adding to or deducting from 
any valuation made as aforesaid, such sum as to them, or a majority 
of them, may appear just and equitable. The common council shall 
have power to refer the assessment lists and all complaints in regard 
to any assessment to a committee of said council, which committee 
shall sit from day to day and examine such lists and hear and deter- 
mine such complaints, and shall make reports thereon to the common 
council within ten days after the meeting of the board of equalization 
before mentioned, which report shall be accompanied by a statement 
of the total amount of the taxables returned by the assessor. The 
common council shall then proceed to fix the amount and rate of tax 
to be levied on property and polls within such city, and the clerk shall 
have power, at any time, to correct erroneous assessments that shall 
be proven and made apparent to him, and the common council may, 
at any time, order the amount erroneously assessed against and col- 
lected from any tax-payer to be refunded to him. R. S. 1894, § 3618. 

. By § 254 of act of March, 1891 (R. S. 1894, § 8672), city boards of equalization are 
abolished. See post, § 216. 

The act of 1885 (R. S. 1894, § 3744, etseq.), did not repeal this section. Leonard v. 
City of Indianapolis, 9 App. 262. 

The provisions of this section respecting the refunding of taxes erroneously assessed 
do not apply to towns. Simonson v. Town of West Harrison, 5 App. 459. 

Appraisement— Equalization. — While § 26 of the general act for the incorporation of 
cities of 1867 was in force it was held that, under said section, cities were given two 
modes of ascertaining the value of real estate within their limits for the purpose of 
taxation: first, by adopting the appraisement made under the law for general taxation, 
and, second, by causing it to be appraised; and that, when a city council had adopted 
the appraisement which had been made by the township assessor, that appraisement 
became the basis of the assessment of city taxes, and such council had no authority to 



§ 213 CITIES. 212 

add to the appraisement thus adopted by way of equalizing the same or otherwise. 
Jones V. City of Columbus, 62 Ind. 421. 

Ill^'al annexation— Taxes— Injunetion. — Where a city has assessed for taxation 
property illegally annexed to such city, collection of taxes so assessed may be enjoined. 
Oity of Pern v. Bearss, 55 Ind. 576; Windman v. City of Vincennes, 58 Ind. 480; Stultz^ 
V. State, 65 Ind. 492, 503. See Mullikin v. City of Bloomington, 72 Ind. 161. 

Lands illegally annexed to city.~If taxes be assessed and collected by a city on 
lands illegally annexed to the city, they may be recovered. City of Indianapohs v. 
McAvoy, 86 Ind. 587, 589; Strosser v. City of Ft. Wayne, 100 Ind. 443, 444; City of 
Indianapolis v. Patterson, 112 Ind. 344, 350. 

Taxes illeg'ally collected — Eemedy. — An ordinary action may be maintained to 
recover taxes illegally assessed and collected. City of Indianapolis v. McAvoy, 86 Ind. 
587; Newsom v. Board, etc., 103 Ind. 526; City of Indianapolis v. Patterson, 112 Ind. 
344; City of Indianapolis v. Vajen, 111 Ind. 240; Leonard v. City of Indianapolis, 9 
App. 262. 

Duty to refund mandatory.— The provision of this section as to refunding taxes 
erroneously assessed is mandatory. City of Indianapohs v. McAvoy, 86 Ind. 587 ; City 
of Indianapolis v. Vajen, 111 Ind. 240, 247; DePauw, etc., Co. v. City of Alexandria, 
Ind. Sup. Ct., Jan. 11, 1899. 

Deduction of indebtedness. — If a tax-payer is erroneously refused permission to 
deduct his indebtedness from his credits, and he pays the taxes illegally assessed under 
protest, he may recover from the city such illegal tax. City of Indianapolis v. Vajen, 
111 Ind. 240. 

Estoppel.— A land-owner may be estopped by his own conduct from contesting the 
validity of a tax imposed upon land illegally annexed. Where a land-owner in such 
case, for three years, permitted the city to proceed to make costly improvements and 
assume heavy obhgations, openly and in full view without objection from the land- 
owner, and could not have been unaware that the common council was induced thereto 
in part by its belief that the land so illegally annexed would bear its ratable proportion 
of the burden ; and the land-owner also accepted the protection of the municipal gov- 
ernment, and for said period acquiesced in a state of things that reasonably led the city 
to rely upon the land as taxable for city purposes and accepted benefits at the expense 
of the city, such land-owner will not be permitted to invoke the invalidity of the act of 
annexation to escape taxation. DePauw, etc., Co. v. City of Alexandria, Ind. Sup. Ct., 
Jan. 11, 1899. 

Voluntary payment — Mistake of law. — Without a statute authorizing it, no recovery 
can be had for taxes voluntarily paid, although paid under protest. A mistake as to the 
law will avail nothing in such a case. Board, etc., v. Armstrong, 91 Ind. 528, 534; 
Hines v. Board, etc., 93 Ind. 266, 268; Durham v. Board, etc., 95 Ind. 182, 183; Board, 
etc., V. Graham, 98 Ind. 279, 280; Worley v. Town of Cicero, 110 Ind. 208, 209; Church- 
man V. City of Indianapolis, 110 Ind. 259, 267; City of Indianapolis v. Vajen, 111 Ind. 
240, 246; McWhinney v. City of Logansport, 132 Ind. 9, 12; Donch v. Board, etc., 4 
App. 374, 378; Simonson v. Town of West Harrison, 5 App. 459. 

Demand not essential. — A demand is not essential to create a cause of action for 
taxes illegally collected. Newsom v. Board, etc., 103 Ind. 526, 530. 

City taxes, land sold for. — As a general rule, a city is not liable to refund to a pur- 
chaser, who fails by his purchase to acquire title to or a lien upon land sold for city 
taxes, the amount of money paid by him upon such purchase. In order to render it 
liable to refund the money, it must be shown that the land was not liable to taxation, 
or that the taxes had been paid before sale. City of Logansport v. Humphrey, 84 Ind. 
467, 469; McWhinney v. City of Indianapolis, 98 Ind. 182, 183; McWhinney v. City of 
Indianapohs, 101 Ind. 150, 152; City v. Langsdale, 29 Ind. 486; Worley v. Town of 
Cicero, 110 Ind. 208. 



213 TAXATIOxX. § 213 

Lands illeg^ally annexed, sale of.— The common coancil of a city by resolution an- 
nexed certain real estate to the city, and assessed the same for taxes for the years 1878 
and 1879, and such taxes remaining unpaid, said real estate was, on February 15, 
1881, sold to M., and a certificate was issued to him. Before a deed was executed, the 
city annulled the annexation, because the land was not contiguous. M. had no knowl- 
edge at the time of his purchase that the land was not properly annexed and legally 
assessed, and before he discovered said facts he paid taxes thereon in addition to the 
purchase-money. M. could recover from the city, under §§ 217 and 218 of the act of 
March 29, 1881 (Acts 1881, p. 681), the amount of the purchase-money and subse- 
quent taxes paid. McWhinney v. City of Indianapolis, 101 Ind. 150, 153. 

City tax sale. — A city or town can not purchase property sold for delinquent taxes 
due the city or town, nor can a city or town make a valid agreement to warrant the 
title to property sold at tax sale. City of Logansport v. Humphrey, 84 Ind. 467. 

Invalid sales by city— Remedy.— Under the general tax law of 1881, §§ 227 and 
228 of the act of December 21, 1872, providing a remedy for purchasers of real estate 
at invalid tax sales, and which were applicable to sales of real estate made by cities, 
were re-enacted and continued in force as §§ 217 and 218 of the act of March 29, 1881, 
which were likewise applicable to cities, and such remedj^ has been continuously in 
force since the date of the first act, notwithstanding its repeal and re-adoption, (See 
§§ 212 and 213 of the tax law of 1891. (R. S. 1894, §§ 8630, 8631.) McWhinney v. City 
of Indianapohs, 101 Ind. 150; Millikan v. City of Lafayette, 118 Ind. 323. 

When sale void. — A sale is void where the land is not liable for taxation, where the 
taxes were paid before sale, or where the description is insufficient. State v. Casteel, 
110 Ind. 174; St. Clair v. McClure, 111 Ind. 467; Morrison v. Jacoby, 114 Ind. 84; 
McWhinney v. City of Indianapolis, 98 Ind. 182 ; City of Logansport v. Case, 124 Ind. 
254. 

Sale — Municipal power. — A power given to a municipality to sell property for de- 
linquent taxes, like other powers, can be exercised only in the mode prescribed by the 
statute, if there be such mode. City of Logansport v. Humphrey, 84 Ind. 467. 

Private sale — Transfer of lien. — A private sale of land for taxes, after notice as re- 
quired by statute, if insufficient to convey title, will transfer the lien of the state to the 
purchaser. Peckham v. Millikan, 99 Ind. 353; McWhinney v. City of Indianapolis, 98 
Ind. 182; Morrison v. Jacoby, 114 Ind. 84. 

Purchaser's lien — Void sale. — A tax sale, although made in violation of mandatory 
provisions of the statute, vests in the purchaser the lien of the state upon the land upon 
which the taxes were leviable, in all cases except where the sale was void because the 
land was not liable to taxation, or where the taxes had been paid, or the description of 
the land was so imperfect as to fail to identify the land, or where the sale was made 
without authority of law. City of Logansport v. Case, 124 Ind. 254. 

Sale ineffectual to convey title, but carrying* lien— Redeni])tion.— Where a tax sale 
is ineffectual to convey title, but carries to the purchaser the lien of tlie state, the de- 
linquent tax-payer can redeem from such sale only upon the conditions prescribed by 
the statute. City of Logansport v. Case, 124 Ind. 255. 

County sale for taxes -City taxes.— A purchaser at a tax sale made by the county 
officers takes the land subject to tine lien for city taxes thereon, if the land is of suffi- 
cient value to pay all taxes, but if the land is not sufficient to pay all taxes, then the 
sale first rightfully made will divest the Hen for the other taxes. Justice v. City of Lo- 
gansport, 101 Ind. 326; IMillikan v. Hamm, 104 Ind. 498. 

Tax sale— Caveat emptor.— The purchaser at a city tax sale assumes all risk, and, if 
the sale proves invalid, has no remedy against the municipality. Tlie city can not war- 
rant the title. City of Logansport v. Humphrey, 84 Ind. 467; Churchman v. City of 
Indianapolis, 110 Ind. 259. 

Invalid tax sale— Refunding- money by city.— As a general rule, a city is not liable 



§ 214 CITIES. 214 

to refund to a purchaser, who fails by his purchase to acquire title to or lien upon land 
sold for city taxes, the amount of money paid by him upon such purchase. In order to 
render the city liable to refund the money, in such case, it must be shown that the land 
was not liable to taxation, or that the taxes had been paid before sale. McWhinney v. 
City of Indianapohs, 98 Ind. 182; City of Indianapolis v. Patterson, 112 Ind. 344; Mil- 
hkan v. City of Lafayette, 118 Ind. 323. 

Same — Judgfineiit as to lien — When conclusive as to city. — When an action is 
brought by the owner of the land against the city treasurer and the purchaser, and de- 
fended by the city, wherein it is decreed that the purchaser acquired no lien, and his 
certificate is canceled and the plaintiffs' title quieted, the city is concluded by the judg- 
ment, and the purchaser is then entitled to be re-imbursed, under § 218 of the general 
tax law of 1881. Millikan v. City of Lafayette, 118 Ind. 323. 

But where the city is not in any manner a party to the action, the judgment of the 
court refusing to enforce the purchaser's lien against the land-owner does not conclude 
the city, and, therefore, the mere rendition of the judgment does not render the city 
liable to refund the purchase-money. McWhinney v. City of Indianapolis, 98 Ind. 182. 

Tax sale certificate— Void sales. — The act of March 11, 1875, made the tax law of 
December, 1872, apphcable to cities and towns, and purchasers at tax sales who did not 
get titles were entitled to 25 per cent, interest; and a tax sale certificate only entitled the 
holder to possession of land when the sale was valid. Barton v. McWhinney, 85 Ind. 
481. 

Invalid sale — Reimbursement of purchaser.— A proceeding, brought after the tax 
law of 1881 went into force, by a purchaser at a city tax sale made under the law of 
1872, wherein the plaintiff seeks to be reimbursed from the city treasury for the taxes 
paid by him, was governed by the law of 1881. Millikan v. City of Lafayette, 118 Ind. 
323. 

Under the tax law of 1881, the right of a purchaser to be reimbursed from the public 
treasury for taxes paid by him, on account of the uncertainty of the description of the 
land sold, only exists where the description is so indefinite as to fail to carry a lien. 
Milhkan v. City of Lafayette, 118 Ind. 323. 

Under the tax law of 1881, where one has purchased real estate at a tax sale for 
non-payment of county and state taxes, and afterwards pays the city tax on such prop- 
erty, he may, in a suit to quiet title, have the same allowed and decreed a lien on the 
real estate as part of the original claim for the purchase price. Millikan v. Hamm, 104 
Ind. 498; Schissel v. Dickson, 129 Ind. 139. 

Under the general tax law of 1872, the sales of lands by city treasurers for deUnquent 
taxes, together with penalties, etc., were governed by the general tax law. Schissel v. 
Dickson, 129 Ind. 139, 149; Barton v. McWhinney, 85 Ind. 481. 

214. Sinking fund tax. — 82. For the purpose of creating a sink- 
ing fund for the gradual extinguishment of the bonds and funded 
debt of any city coming under this act of incorporation, the common 
council thereof shall, annually, levy and collect, in addition to other 
taxes herein provided, not less than half a mill on the dollar upon the 
taxable property in such city; which shall be paid into the treasury 
and applied, by direction of the common council, to the extinguish- 
ment of the bonds and debts aforesaid, and to no other purpose what- 
ever. R. S. 1894, § 3619. 

See ante, §§ 146, 201, 203, et seq., and post, § 1001, et seq. 

Sinking" fund tax.— Under § 60 of the general act of 1867 for the incorporation of cit- 
ies, while said section was in force, the common council could, in addition to a levy to 



215 TAXATION. § 215 

pay interest upon public railroad debt, add to such levy not less than five cents on the 
one hundred dollars of the assessed value, to create a sinking fund to liquidate the prin- 
cipal of such debt. And, where a levy for such purpose was made, it was not rendered ille- 
gal or void by the fact that it did not specify the portion to be applied to the Uquida- 
tion of each, and such fact was not ground to enjoin the collection of the tax. City of 
Aurora v. Lamar, 59 Ind. 401. 

215. Temporary loans. — 83. Loans may be made by a vote of 
two-thirds of the common council, in anticipation of the revenue of 
the current and following year, and payable within that period; but 
the aggregate amount of such loan in any fiscal year shall not exceed 
the levy and tax authorized by this act for municipal expenses for the 
same year. R. S. 1894, § 3620. 

The purchase of real estate on credit is not a loan within the meaning of this section. 
City of Richmond v. McGirr, 78 Ind. 192. 

[Acts 1891, p. 199. In force March 6, 1891.] 

216. Cities governed by this act — Payment of taxes — Assessment 

and equalization. — 254. Cities shall be governed by the provisions of 
this law, in regard to the matters embraced therein, so far as the same 
are applicable, and the duties required by the terms of this act to be 
done by the county officers, shall be performed by the corresponding 
officers of each city in regard to the assessment and collection of taxes, 
and all matters pertaining thereto: Provided, That all city taxes shall 
be paid on or before the third Monday in April of each year, unless 
the common council shall, by ordinance or resolution, determine other- 
wise, as provided by law: And , provided further, That the office of city 
assessor and the city board of equalization are hereby abolished and 
the assessment of real and personal property, as made and returned 
by the township assessor, shall serve as the assessment for city pur- 
poses, and the proper cit}^ officers shall have access to the assessor's 
books and to the tax duplicates in the county auditor's office, for the 
purpose of transcribing therefrom a list of the property assessed, as 
the same shall have been equalized by the board of review and the 
state board of tax commissioners. R. S. 1894, § 8672. 

See R. S. 1894, Taxation, ch. 108 (§8408, et seq.), Burns' Supp. 1897, Taxation, ch. 108 
(§8411, et seq.), and Acts 1899, pp. 422, 430, 431, 491, 516. Also, see post, § 1057. 

General law— Omitted property— City clerk.— The general law of the state, in re- 
gard to the matters embraced therein, so far as the same is applicable, upon the subject 
of taxation, governs cities. The city clerk is the proper city officer to assess omitted 
property, and to give the notice to the owner required to be given in such case. City 
of Delphi V. Bo wen, etc., 138 Ind. 235. 

[Acts 1883, p. 30. In force Feb. 27, 1883.] 

217. Time to pay taxes— Delinquency— Penalty.— 1 . That any 
city in this state by a provision contained in the ordinance or resohi- 
tion fixing the tax levy for any year, may aUow the taxes so levied for 
general city purposes to be paid in equal semi-annual installments, 
the first half to be paid on or before the third Monday in April, and 



§ 218 CITIES. 216 

the second half on or before the first Monday in November : Provided, 
That in all cases where the first installment shall not be paid on or 
before the third Monday in April, the whole amount unpaid shall be- 
come due and be returned delinquent and collected as provided by 
law ; and there shall be a penalty added of 10 per cent, upon the 
amount of any installment not paid when due, which the persons or 
property assessed shall pay, together with the cost of collection, and 
if such taxes remain delinquent at the succeeding first Monday in 
November, there shall be a penalty of 6 per centum added to all such 
taxes that became delinquent at the preceding April and November 
settlements, and a penalty of ten per centum only shall be added to the 
current delinquency occurring on the first Monday in November. All 
poll or special taxes shall be paid at the same time, on or before the 
third Monday in April. In all cities which do not adopt and accept 
the provisions hereof taxes shall be paid and collected as now pro- 
vided by law. R. S. 1894, § 3622. 

See Bums' Supp. 1897, § 8570. 

By amendment to the general tax law of 1891, if this provision is applicable to cities, 
any person may pay the full amount of his taxes on or before the first Monday in May, 
or may pay the first installment on or before such first Monday, and the remaining in- 
stallment on or before the first Monday in November following. Burns' Supp., 1897, 
§ 8570. , 

Penalty and interest— Delinquent taxes— Law of 1891 construed.— Under the tax 
law of March 6, 1891, non-payment of the April installment carries into delinquency 
the whole tax, to which is added a penalty of 10 per centum; if such taxes are not paid, 
but are delinquent in November, an additional burden of 6 per centum thereon is 
imposed ; if the April installment is paid, and only the November installment is delin- 
quent, but 10 per centum can be added ; and to these penalties no additions can be 
made in the way of either penalties or interest, however long the delinquency con- 
tinues. Evansville, etc., E. Co. v. West, 139 Ind. 254. 

For construction of prior statute as to tax delinquency, penalty, etc., see Abbott v. 
Edgerton, 53 Ind. 196. 

Liability for publication of delinquent list. — A city is liable, on a common count 
for work and labor, to one who, on request of her authorized agent, publishes her delin- 
quent list of tax-payers in a newspaper. City of Evansville v. Thayer, 59 Ind. 324. 

ARTICLE 4.— IMPROVEMENT OF STREETS. 

SEC. SEC. 

218. Power over streets. 222. Payment — Lien — Order without peti- 

219. Petition for street improvements. tion. 

220. Cost, how apportioned. 223. Payment, how enforced. 

221. Apportionment of cost of improvement. 

[Acts 1867, p. 33. In force March 14, 1867.] 

218. Power oyer streets. — 61. The common council shall have 
exclusive power over the streets, highways, alleys and bridges within 
such city, and may prescribe the height and manner and construc- 
tion of all such bridges, and to lay out, survey, extend and open new 
streets and alleys, and straighten, widen and otherwise alter those 
already laid out, and to make repairs thereto, to construct and estab- 
lish sidewalks and crossings; they may cause buildings, structures or 



217 IMPROVEMENT OF STREETS. § 218 

other things in the way of any street or other public improvement to 
be taken down, removed and appropriated, upon the payment of dam- 
ages as now provided by law; they may enter upon, seize, appropriate, 
and condemn the right of way, or other lands of any railroad com- 
pany, person or corporation passing through such city for street or 
alley purposes, whether such lands be occupied and used or not, upon 
payment of damages as provided under and pursuant to the provisions 
of an act entitled ''An act in relation to the laying out, opening, widen- 
ing, altering and vacation of streets, alleys and highways, and for the 
straightening or altering of water-courses by cities of the state, and 
providing for the appointment of commissioners to assess benefits and 
damages, prescribing their duties and the method of procedure, and 
providing for the collection of benefits and payment of damages, and 
prescribing the duties of city officers in relation thereto, and provid- 
ing remedies in such matters," approved March 17, 1875, and the 
amendments thereto, and not [no] person residing in said city shall be 
required or compelled to v/ork on any road without the city; nor shall 
any property lying or being within the city be taxed for the purpose 
of working, opening, improving or repairing any road or bridge with- 
out the limits of said city; and the common council may exercise all 
powers of township trustees, and the street commissioners, under the 
direction of the common council, may perform all the duties and ex- 
ercise all the powers of township trustees and road supervisors in ref- 
erence to a road labor tax of two days by each person liable to w^ork 
on roads in townships, and shall be governed by the same rules and 
regulations in reference to the collection and enforcement of the same; 
or any person so liable to work may be discharged therefrom on the 
payment of one dollar and fifty cents per diem: Provided, That the 
common council may, by general ordinance, prescribe the time within 
which such labor shall be performed. [As amended, Acts 1891, p. 122. 
In force March 6, 1891.] R. S. 1894, § 3623. 

See Towns, post, § 1258. 

Statutes construed. — The above and succeeding sections should be construed with 
§ 224, post, et seq. City of Terre Haute v. Evansville, etc., R. Co., 149 Ind. 174. 

Constitutional law. — For constitutional provisions applicable, see ante, §§4 and 11, 
and notes. 

Dedication — Plats — Prescription — Streets . 

What is necessary to constitute.— To constitute a valid dedication, there must be a 
clear intention on the part of the owner, clearly indicated by unequivocal acts or con- 
duct, to dedicate the land to the public, and there must be an acceptance by the public 
of the land dedicated. Ross v. Thompson, 78 Ind. 90, 95; Faust v. City of Huntington, 
91 Ind. 493, 494; Tucker v. Conrad, 103 Ind. 349, 354; Shellhouse v. State, 110 Ind. 509, 
513; Mansur v. State, 60 Ind. 357; Mansur v. Haughey, 60 Ind. 364; Steinaur v. City of 
Tell City, 146 Ind. 490; Elliott Roads and Streets, pp. 85, 120; 2 Beach Pub. Corp., 
§ 1450. 

Express — Implied. — The dedication may be either express or iuiplied. An express 
dedication of property to a public use is made by a direct appropriation of it to such use. 
Dedication may be implied from the acts of the owner. Williams v. AViley, 16 Ind. 362; 
Gwynn v. Homan, 15 Ind. 201; City of Indianapolis v. Iviugsbury, 101 Ind. 200, 219; 



§ 218 CITIES. 218 

Town of Marion v. Skillman, 127 Ind. 130; Cromer v. State, 21 App. 502; Pittsburgh, 
etc., R. Co. V. Town of Crown Point, 150 Ind. 536; Elliott Eoads and Streets, p. 91. 
Streets, p. 91. 

Statutory and common law dedication.— A dedication may be statutory or by com- 
mon law. One operates by grant, the other by estoppel in pais. 1 Dillon Munic. Corp., 
§ 628; Elliott Roads and Streets, pp. 85, 87. 

All that is necessary to constitute a dedication of land to a public use is the assent of 
the ow^ner of the soil to the use by the public, and the actual enjoyment by the public 
of the use for such length of time that public accommodation and private rights w^ould 
be materially affected by a denial or interruption of the enjoyment. Town of Marion 
V. Skillman, 127 Ind. 130, 136. 

The indication of an owner of lands on a recorded plat of an intention at some future 
time to dedicate a portion of the lands for a street, will not amount to a dedication. 
City of New Albany v. Williams, 126 Ind. 1. 

Evidence that a street has been used by the public and that a tow^n has repaired it, is 
sufficient to show an acceptance of a dedication. Acceptance upon the part of the pub- 
lic maybe express or implied. Town of Fowler v. Linquist, 138 Ind. 566; Boyer v. 
State, 16 Ind. 451; Elliott Roads and Streets, p. 115. 

The fact that a part of a street has been for several years appropriated by a private 
citizen to his own use, is not conclusive evidence that the dedication has not been ac- 
cepted, or has been abandoned by the public. Boyer v. State, 16 Ind. 451. 

Ipso facto dedication— Suit for damag'es for appropriation of land. — Where a fair 
construction of a complaint is that plaintiff's land therein described was appropriated 
for permanent use as a street, a recovery of damages thereon works a dedication of the 
land to the city for street purposes ; and in such case it is not necessary for plaintiff to 
aver a willingness to convey the land described before he could recover its value. City 
of Huntington v. Kenower, 12 App. 456. 

Dedication by plat. — Marking a street upon the plat of a town or city, or an addition 
thereto, and selling lots with reference to such marked street, constitutes a dedication 
of the ground so marked to the use of the pubhc as a street. Faust v. City of Hunting- 
ton, 91 Ind. 493, 495; City of Indianapolis v. Kingsbury, 101 Ind. 200, 210; Fossion v. 
Landry, 123 Ind. 136, 143; Miller v. City of Indianapohs, 123 Ind. 196, 206; Wolfe v. 
Town of Sullivan, 133 Ind. 331, 333; City of Logansport v. Dunn, 8 Ind. 378; Gwynn v. 
Homan, 15 Ind. 201; City of Evansville v. Evans, 37 Ind. 229; Cox v. Louisville, etc., 
R. Co., 48 Ind. 178; Shanklin v. City of Evansville, 55 Ind. 240; Boyer v. State, 16 Ind. 
451 ; Conner v. New Albany, 1 Blackf. 43 ; Rhodes v. Town of Brightwood, 145 Ind. 21 ; 
Town of Woodruff v. Raschig, 147 Ind. 517; Common Council, etc., v. Croas, 7 
Ind. 9; Vaughn v. Stuzaker, 16 Ind. 338; Yv^est v. Blake, 4 Blackf. 234. 

Dedication— Plat— Presumption.— A mere showing that some one, not proved to be 
the owmer, has placed on record a map or plat in which a street or highway is laid off, 
w^ill raise no presumption against a party in possession, who has proved title in him- 
self, coupled wdth possession for more than twenty years. Such plat, taken by itself, 
and without evidence of ownership by the donor, is of no value as tending to establish 
a dedication. City of Lawrenceburgh v. Wesler, 10 App. 153, 159. See Tow^n of Fow- 
ler V. Linquist, 138 Ind. 566. 

WTien the shape, lines and dimensions of a space marked on a recorded plat indicate 
that it is a street, there is a valid dedication of the space so indicated, although there be no 
formal words of dedication, and although the space be not in express terms designated 
as a street. City of Indianapolis v. Kingsbury, 101 Ind. 200, 209. 

Plat— Ho w^ construed after recording'. — Where ways are shown on recorded plats, 
and they appear as streets, they will be so regarded, unless there is in the plats an 
express provision to the contrary, and no acts or conduct of the owner can change the 
effect of the dedication evidenced hj the plat. City of Indianapolis v. Kingsbury, 101 
Ind. 200, 209. 



219 IMPROVEMENT OF STREETS. § 218 

The filing and recording of a plat of an addition to a town shows, prima facie, that 
the dedicator was the owner of the land and intended to dedicate the streets marked on 
the plat. Town of Fowler v. Linquist, 138 Ind. 566. See City of Lawrenceburg v. 
Wesler, 10 App. 153. 

To the public, not the city.— A grant or dedication of a street is a grant or dedica- 
tion to the public, and not to the city. Miller v. City of IndianapoHs, 123 Ind. 196, 198. 

When implied from conduct.— The assent of the owner to the public use need not 
be expressly declared, nor be manifested in any particular manner, but may be implied 
from the conduct of the owner of the land. City of Indianapolis v. Kingsbury, 101 
Ind. 200, 219; Town of Marion v. Skillman, 127 Ind. 130, 136; Faust v. City of Hunt- 
ington, 91 Ind. 493. 

An implied dedication arises by operation of law from the acts of the owner of the 
land. Town of Marion v. Skillman, 127 Ind. 130. 

Dedication — Proof. — A street may be shown to exist in a town or city, whether in- 
corporated or not, by a public plat, together with user by the public, or a sale of adjoin- 
ing lots by the proprietor ; or, by proof of a parol dedication to the public, accompanied 
by user by the public ; or, by proof of acts of the owner evidencing a dedication, as 
by selhng lots on opposite side of a strip suitable for a street, and standing by and see- 
ing it used by the public; or, by proof of a taking by lawful authority for public use. 
Gwynn v. Homan, 15 Ind. 20i; Williams v. Wiley, 16 Ind. 362; City of Logansport v. 
Dunn, 8 Ind. 378 ; Elliott Roads and Streets, pp. 86, 89. 

Intention to dedicate— Evidence. — As to whether a person intends to make a dedi- 
cation of ground to the public for a street or other purpose, must be determined from 
his acts and declarations explanatory thereof, in connection with all the circumstances 
that surround and throw light upon the subject, and not from what he may subse- 
quently testify in relation to his real intentions. Fossion v. Landry, 123 Ind. 136; City 
of Columbus V. Dahn, 36 Ind. 330; City of Indianapolis v. Kingsbury, 101 Ind. 200. 

Dedication of land to public use— Intention of party.— Where the declarations, 
acts, and conduct of a land-owner are such as fairly and naturally lead to the conclusion 
that he intended to dedicate land to public use, and others have in good faith acted 
upon such acts and declarations, the fact that the land-owner may have entertained a 
different intention from that manifested by his acts and declarations can not prevail 
against the force of his conduct and acts upon which the public or those dealing with 
him have relied. Pittsburgh, etc., R. Co. v. Noftsger, 148 Ind. 101. 

An implied dedication of a public highway is made by acts or a course of conduct 
from which the law will infer an intent to dedicate. It will exist without any express 
grant, and is founded in the doctrine of equitable estoppel. The public, as well as in- 
dividuals, have a right to rely upon the conduct of the owner as indicative of his intent, 
and if his acts are such as would fairly and reasonably lead an ordinarily prudent 
man to infer an intent to dedicate, and his acts are so received and relied upon by the 
public, the dedication is complete. The intent to dedicate will be inferred from the 
acts. Lake Erie, etc., R. Co. v. Town of Boswell, 137 Ind. 336. 

Intent to dedicate necessary. — It is necessary, to constitute a valid dedication, that 
there should be a clear intent to dedicate the land to a public use, but the intent which 
the law regards is that which the open acts of the owner indicate and not a secret 
intent. Bidinger v. Bishop, 76 Ind. 244,254; City of Indianapolis v. Kingsbury, 101 
Ind. 200, 213 ; Town of Marion v. Skillmaai, 127 Ind. 130, 136 ; Elliott Roads and Streets, 
p. 92. 

Intent Inferred from conduct.— Where the acts and conduct of the land-owner are 
such as fairly and naturally lead to the conclusion that he intended to dedicate the 
land to the public use, and others have in good faith acted upon his open acts and con- 
duct, he will not be permitted to aver that there was no dedication, but the law will 
conclusively infer that he intended what his acts and conduct indicated. City of 



§ 218 CITIES. 220 

Indianapolis v. Kingsbury, 101 Ind. 200, 215; Pittsbarg, etc., R. Co. v. Town of Crown 
Point, 150 Ind. 536; Cromer v. State, 21 App. 502; Elliott Roads and Streets, p. 92. 
Streets, p. 92. 

T^Tiere a railroad company for eighteen years permitted the public to use a street 
across its right of way as a public crossing, allowed it to make improvements thereon, 
parted its trains to permit persons and vehicles to pass through, and recognized its 
existence as a duly laid out public street in a map required by the statute to be filed as 
a public record, an intent to dedicate it to the use of the public in common with itself 
will be presumed. Lake Erie, etc., R. Co. v. Town of Boswell, 137 Ind. 336. 

Dedication by railroad tuslj be inferred from use by the public as a highway for 
thirty, years, the public having accepted the use for a definite width, the town 
ha\dng improved and cared for the same as other streets, and residence and business 
property having been erected and maintained with their only entrance over the land, 
all without objection from the railroad company. Pittsburgh, etc., R. Co. v. Town of 
Crown Point, 150 Ind. 536. 

Evidentiary facts of intention. — Evidentiary facts, tending to prove an intended 
dedication, or from which it might possibly be presumed, are not themselves such an 
intended dedication. Tucker v. Conrad, 103 Ind. 349, 354; Shellhouse v. State, 110 Ind. 
509, 513; Steinaurv. City of Tell City, 146 Ind. 490, 499. 

When intention may be rebutted. — An intention to dedicate may be rebutted when 
there is an implied dedication, but not when there is an express dedication. City of 
Indianapolis v. Kingsbury, 101 Ind. 200, 215; Miller v. City of Indianapolis, 123 Ind. 
196. 

A single declaration, made by the owner of land, that he intends to dedicate any por- 
tion of it to pubhc use, unconnected with some act in furtherance of that intention, 
will not amount to a dedication ; much less -v^dll such declaration amount to a dedication 
when accompanied or immediately followed, by an act wholly inconsistent therewith. 
City of Logansport V. Dunn, 8 Ind. 378. 

Manner of rebutting' intention. — One of the usual methods of rebutting the pre- 
sumption of dedication is by evidence that a gate was swung across the "way, but this 
will not rebut an intent to dedicate in case of an express dedication, nor will it do so 
in cases of implied dedication where the other evidence in the case shows that there 
was an intent to dedicate and that rights were acquired upon the faith that such an in- 
tent did in fact exist. City of Indianapolis v. Kingsbury, 101 Ind. 200, 215. 

Oral evidence to deny inadmissible. — An imphed dedication may be rebutted by 
parol testimony, but where the dedication is express, evidenced by a recorded plat, the 
intent as expressed in such plat can not be contradicted by parol. Miller v. City of 
Indianapohs, 123 Ind. 196, 207. 

Partition, dedication. — The commissioners in a partition proceeding were ordered 
by the court to lay off the land in controversy into lots, blocks, streets and alleys, which 
was done, there being left undivided a strip sixty feet wide extending east and west 
through the entire width of the land so set off. The commissioners reported to the 
court that they had divided the land intended for partition into lots, etc., and had as- 
signed to each of the persons in said land his share in severalty. All the property 
abutting on the street had passed into the hands of third parties by conveyance or by 
mortgage. Oral evidence was inadmissible to prove that it was not the intention of 
the commissioners to dedicate this strip to the public as a street. MiUer v. City of In- 
dianapolis, 123 Ind. 196, 207. 

Presumption of dedication by user.— User by the pubhc, with the consent of the 
owner, for such length of time that public accommodation and private rights might be 
materially affected by an interruption of the enjoyment, is sufficient to raise a presump- 
tion that the owner intended a dedication to the public. Bidinger v. Bishop, 76 Ind. 
244, 2.54; City of Indianapohs v. Kingsbury, 101 Ind. 200, 216; Zimmerman v. State, 4 



221 IMPROVEMENT OF STREETS. § 218 

App. 583, 589; City of Evansville v. Page, 23 Ind. 525; Faust v. City of Huntington, 91 
Ind. 493; State v. Hill, 10 Ind. 219; Fisher v. Hobbs, 42 Ind. 276; Summers v. State, 51 
Ind. 201; Mauck v. State, Q6 Ind. 177. 

Use of land Avitli owner's consent. — One who devotes a portion of his land for use as 
a M'ay of travel for his own convenience and accommodation will not be deemed to 
have dedicated it to the public simply because the public also use the way with the land- 
o^^-ner's permission, Pennsylvania Co. v. Plotz, 125 Ind. 26, 32 ; Shellhouse v. State, 
110 Ind. 509. 

Prescription— Twenty years' use Avithout intent.— Twenty years' use by the public 
under a claim of right, evidenced by the use, gives a right to the road or street of which 
the owner of the fee can not divest the public, whatever his intention may have been, 
not because an intent to dedicate is conclusively presumed, but because the statute of 
limitations has divested the owner of a right by destroying the remedy. Waltman v. 
Rund, 109 Ind. 366, 367; Town of Marion v. Skillman, 127 Ind. 130, 137; Shellhouse v. 
State, 110 Ind. 509; Board, etc., v. Huff, 91 Ind. 333, 340; Elliott Roads and Streets, p. 
123. 

Section 6762, R. S. 1894, which provides that a way used for twenty years as a high- 
way shall be deemed a public highway, has no application to the public streets of a 
town or city; but dedication maybe presumed from circumstances continuing for a 
much shorter period. Pittsburgh, etc., R. Co. v. Town of Crown Point, 150 Ind. 536; 
Tucker V. Conrad, 103 Ind. 349; Shellhouse v. State, 110 Ind. 509; Elliott Roads and 
Streets, p. 138. 

Where the city took within its corporate limits a highway, and the public continued 
to use the highway as it existed and had been used before, and such use had continued 
for more than twenty years, a highway in which the public had a right to travel be- 
came established, and it became the duty of the city to keep it in a reasonably safe con- 
dition for travel. City of Frankfort v. Coleman, 19 App. 368. 

Before a highway can be established by prescription, it must appear that the general 
public, under a claim of right, and not by mere permission of the owner, used some de- 
fined way, without interruption, or substantial change, for a period of twenty years or 
more. Shellhouse v. State, 110 Ind. 509 ; Talbott v. Grace, 30 Ind. 389. 

Interruption of use by public. — When the use of a way is interrupted, prescription 
is annihilated, and must begin again, and any unambiguous act by the owner, such as 
closing the way at night, or erecting gates or bars which evinces his intention to exclude 
the public from its uninterrupted use, destroys the prescriptive right. Shellhouse v. 
State, 110 Ind. 509. 

Street across public square — Dedication— Prescription.— Although land be set aside 
for a public square, the public may acquire a highway across such land by dedication, 
or by user for twenty years. The county commissioners may make such dedication. 
Board, etc., v. Hough, 91 Ind. 333. 

One public use may be lost by user or dedication to another. Pittsburgh, etc., R. Co.v. 
Town of Crown Point, 150 Ind. 536; Blumenthal v. State, 21 App. 665. 

United States lands— User.— No presumption of dedication of uncultivated land of 
the United States for a highway can be raised from the use of such land as a highway 
by the public. Phipps v. State, 7 Blackf. 512. 

State — Municipal corporations.— States, counties, towns, cities and townships may 
dedicate land for public use for streets, pubHc squares, parks, etc. Elliott Roads and 
Streets, pp. 107, 108 and cases; 2 Beach Pub. Corp., § 1455. 

Irrevocable— Estoppel in pais.— A dedication once made is irrevocable ; it is consid- 
ered as in the nature of an estoppel in pais. Town of IMarion v. Skillman, 127 Ind. 130, 
136; City of Noblesville v. Lake Erie, etc., R. Co., 130 Ind. 1, 3; Shanklin v. City of 
Evansville, 55 Ind. 240; Haynes v. Thomas, 7 Ind. 38; Common Council, etc., v. Croas, 
7 Ind. 9; Rhodes v. Town of Brightwood, 145 Ind. 21. 



§ 218 CITIES. 222 

Revocation before acceptance.— Prior to the acceptance by the public the owner 
may revoke such dedication. Steinhaur v. City of Tell City, 146 Ind. 490. 

Revocation — Private rig'hts. — A dedication to the public becomes irrevocable after 
private rights have been acquired by reason thereof, as by sale of lots by reference to a 
map filed in the recorder's otfice upon which land is designated as a "park." Rhodes 
V. Town of Brightwood, 145 Ind. 21. 

Corrected plat— Revocation.— Where a triangular tract at the intersection of two 
streets, as shown upon a town plat, was not separated from the streets by lines, and two 
years afterwards a corrected plat was filed which expressly reserved said triangular 
tract, there being no evidence that said tract had been intended to be dedicated to the 
public, and no evidence of acceptance thereof by the public, the making and recording 
of said first plat did not constitute a dedication of said triangular tract. Steinhaur v. 
City of Tell City, 146 Ind. 490. 

Invalid condition annexed. — A donor can not attach to his dedication any condi- 
tion that will destroy its chief characteristic or take it from the control of the public 
authorities ; and if such a condition be attached it is void and the dedication is valid. 
City of Noblesville v. Lake Erie, etc., R. Co., 130 Ind. 1, 5; Elhott Roads and 
Streets, p. 109. 

Twenty years user— Hig'h way— Annexation. — Section 6762, R. S. 1894, which pro- 
vides that "all pubhc highways, which have been or may hereafter be used as such for 
twenty years or more, shall be deemed pubhc highways," etc., does not apply to cities; 
but where there has been twenty years' use of the way, prior to its annexation to the 
city, such use constitutes a public one prior to the annexation. Upon annexation of 
the territory through which it extends to the city, such public highway becomes one of 
the streets of the city. Such street may be improved as any other street and the cost 
thereof collected as in other cases. Brown v. Hines, 16 App. 1 ; Tucker v. Conrad, 103 
Ind. 349. 

Passive acquiescence with knowledge. — Mere passive acquiescence, with knowledge, 
by the owner, of an uninclosed and unimproved lot in a town or city, in its use by the 
public for street or highway purposes, until such time as he may be able and willing to 
improve the same, does not constitute a dedication. Tucker v. Conrad, 103 Ind. 349, 
353. 

Express dedication a question of laAv. — As to whether a plat contains an express 
dedication of a strip of ground to the public as a street, is a matter of law for the court. 
Miller v. City of Indianapohs, 123 Ind. 196, 206; Wolfe v. Town of Sullivan, 133 Ind. 
331, 334. 

Implied dedication a question of fact. — In absence of an express dedication, whether 
land was or was not dedicated to the public is not a conclusion of law, but is a question 
of fact to be decided upon the evidence. City of Indianapolis v. Kingsbury, 101 Ind. 200, 
222. 

Construction of maps and plats. — Where there is doubt as to whether the owner in- 
tended by the plat or map to dedicate land to public use, the general rule, within rea- 
sonable limits, is to resolve the doubt in favor of the public. EUiott Roads and Streets, 
p. 111. 

Where reservations of any kind are marked on a plat, the intention of the proprietor 
of such plat in regard to the meaning of the marks on such reseixations is in general a 
question of fact, and not of law. Pidgeon v. McCarthy, 82 Ind. 321. 

Dedication, what is not— Injunction.— Where a railroad company desired to have a 
to portion of an alley vacated in order to build a passenger depot, and presented a petition 
the common council offering to donate to the city a certain strip of ground to be used as a 
street or alley in consideration of the vacation of the said alley, and the city, through 
its proper officers, rejected the proposition of exchange by failing to act thereon, but 
assessed the benefits to the company growing out of the vacation of the said alley at a 



223 IMPROVEMENT OF STREETS. § 218 

certain sum, which sum was paid by the company into the city treasury, and afterward 
the company, for the purpose of making a convenient and necessary way of approach 
to, and egress from, its passenger depot, curbed and paved the strip of ground which it 
had proposed to donate to the city and constructed convenient and necessary gates, all of 
which was done at its own expense, the said strip of ground did not become a public 
street of the city, subject to a right of all the citizens to use it as a public thoroughfare. 
An abutting property-owner could not enjoin the company from erecting a fence along 
the boundary of said strip of ground. Pennsylvania Co. v. Plotz, 125 Ind. 26, 29. 

Proposition not acted upon— Effect.— No right accrued to the public on account of 
the proposition contained in the petition of the railroad to the common council. Inas- 
much as only the matter of vacating the alley was acted upon and referred to the city 
commissioners, everything relating to the opening of a new street must be deemed to 
have been abandoned. A mere proposition, or offer, on the one hand, not acted on or 
accepted, is not a contract. Pennsylvania Co. v. Plotz, 125 Ind. 26, 31. 

Husband and wife— Donation by husband bars wife's interest.— A donation or 
grant of land by a husband, to a municipal corporation for use as a street, bars the 
inchoate interest of his wife in such land. Duncan v. City of Terre Haute, 85 Ind. 104; 
City of Indianapolis v. Kinsbury, 101 Ind. 200, 220; Robinson v. Thrailkill, 110 Ind. 
117; Indiana, etc., R. Co. v. Allen, 113 Ind. 581, 585; Elliott Roads and Streets, p. 108. 

Marriag'e— Effect of pending* partition.— Where proceedings in partition are pend- 
ing, and one of the parties marries, the validity of the dedication made by the commis- 
sioners will not be affected by such marriage. City of Indianapolis v. Kingsbury, 101 
Ind. 200, 217. 

When presumed ag-ainst married women.— A dedication may, in some cases, be 
presumed against a married woman, although there be no formal deed executed by her- 
self and husband. City of Indianapolis v. Kingsbury, 101 Ind. 200, 219. 

Bj^ g'uardian of an infant. — A guardian of an infant has authority, when so ordered 
by a court of competent jurisdiction, to subdivide the lands of his ward, and to dedicate 
streets and highways to the public. City of Indianapolis v. Kingsbury, 101 Ind. 200, 
208. 

As to whether infants may be estopped by matters in pais to deny dedication, see El- 
hott Roads and Streets, p. 104 and cases. 

By commissioners in partition.— It is competent for commissioners in partition pro- 
ceedings, acting under the order of a court of competent jurisdiction, to make a subdi- 
vision of the land into lots, and to dedicate streets and alleys to the public on the plats 
made by them. City of Indianapohs v. Kingsbury, 101 Ind. 200, 207 ; Miller v. City of 
Indianapolis, 123 Ind. 196. 

Continuing" way on second plat. — Where a land-owner, having made and recorded 
a plat with lines marking a way, afterward makes and records a second plat on which 
the way is continued of the same width as on first plat, and is marked "Highland 
street," and lots are sold with reference to such plats, it will be conclusively presumed 
that the way throughout its entire length is a public one. City of Indianapolis v. 
Kingsbury, 101 Ind. 200, 211. 

Dedication by town plat— Fee-simple.— By the making and recording of a town 
plat, under the statutes of this state on that subject, the designation of streets, lanes, 
and alleys on the plat gives to the public only an easement therein for such use as the 
public have a right to make of them ; but the fee-simple remains in the proprietor. Cox 
V. Louisville, etc., R. Co., 48 Ind. 179, Board, etc., v. Indianapolis, etc., Co., 134 Ind. 
209, 213; Lostutter v. City of Aurora, 126 Ind. 456; Haslett v. New Albany, etc., R. 
Co., 7 App. 603; Terre Haute, etc., R. Co. v. Rode), 89 Ind. 128. 

Effect of conveyance of lands or lots abuttiug- on streets.— A conveyance of land 
on a highway carries with it the fee to the center of the road, as part or paicel of the 
ground, unless such inference be excluded ; and this rule is applicable wheu the land 



§ 218 CITIES. 224 

conveyed is a lot or part of a lot in a town or city and designated on the plat by its 
number, or ascertained by its appropriate description, and abutting on a street, lane or 
alley. Cox v. Louisville, etc., E. Co., 48 Ind. 178; City of Indianapolis v. Kingsbury, 
101 Ind. 200, 211; Indianapolis, etc., E. Co. v. McCaffery, 72 Ind. 294. 

Chang-e of private to ])ublic way,— A private way, no matter how long or how much 
used by the public, can not be transferred into a public way without the consent of the 
owner, but when the owner does consent, and the public accepts, the change may be 
made. City of Indianapohs v. Kingsbury, 101 Ind. 200, 217. 

Use as street— Injunction.— In a suit to enjoin a city from using a strip of ground 
as a street, the complaint must not only show that there has been no grant or condem- 
nation of the land for a street, but, also, that there has been no implied dedication. 
Faust V. City of Huntington, 91 Ind. 493. 

Eminent Domain — Streets, 

Appropriation of land for streets.— The legislature may authorize the taking of pri- 
vate property for use as streets and other public highways. McCormick v. President, 
etc., 1 Ind. 48 ; Snyder v. President, etc., 6 Ind. 237 ; Eassier v. Grimmer, 130 Ind. 219; 
Eay V. City of Jeffersonville, 90 Ind. 567 ; Palmer v. Stumph, 29 Ind. 329 ; Elliott Eoads 
and Streets, pp. 141, 146. 

Where a city desires to appropriate land for the purposes of a street, it must first 
comply with the provisions of the law, as to the assessment and tendering of damages 
to the owner. City of Lafayette v. Bush, 19 Ind. 326; McKernan v. City of Indianapo- 
lis, 38 Ind. 223; City of New Albany v. Endres, 143 Ind. 192; Dantzer v. Indianapolis 
Union E. Co., 141 Ind. 604; City of New Albany v. White, 100 Ind. 206. 

Land can not be appropriated for the purposes of a street unless compensation is first 
assessed and paid or tendered. Faust v. City of Huntington, 91 Ind. 493; Holder v. 
City of Crawfordsville, 143 Ind. 558; City of Terre Haute v. Blake, 9 App. 403; City of 
New Albany v. Endres, 143 Ind. 192; Elliott Eoads and Streets, pp. 178, 179. 

Eminent domain— Appropriating- land taken for one public use to another.— 
Lands once taken for public use can not, under general laws, without an express act of 
the legislature for that purpose, be appropriated by proceedings in invitum to a different 
public use. A legislative intent to subject lands devoted to a public use, already in exer- 
cise, to one which may thereafter arise, will not be implied from a grant of power, 
made in general terms, without special reference to an existing necessity for the subse- 
quent use, when it appears that both uses can not stand together, and the latter, if ex- 
ercised, will greatly endanger the exercise of the former. City of Terre Haute v. Evans- 
ville, etc., E. Co., 149 Ind. 174; Baltimore, etc., E. Co. v. North, 103 Ind. 486; City of 
Ft. Wayne v. Lake Shore, etc., E. Co., 132 Ind. 558; City of Seymour v. Jeffersonville, 
etc., E. Co., 126 Ind. 466; Lake Shore, etc., E. Co. v. Cincinnati, etc., E. Co., 116 Ind. 
578; Baltimore, etc., E. Co. v. North, 103 Ind. 486; McDonald v. Payne, 114 Ind. 359; 
Steele v. Empson, 142 Ind. 397; Cincinnati, etc., E. Co. v. City of Anderson, 139 Ind. 
490; Elliott Eoads and Streets, p. 167 ; 3 Eihott Eailroads, § 1104; 1 Beach Pub. Corp., 
§660; Gold v. Pittsburg, etc., E. Co., Ind. Sup. Ct., March 28, 1899. 

Same— Eig-ht of way and other property of railroad companies— Condemnation 
of by city for street — Statute. — Under the law as it existed prior to the amendment 
of this section in 1891, no city had power to condemn real estate belonging to a 
railroad company, in actual use for right of way and for depot purposes, and to 
appropriate the same to the use of the public as a street, as the statute authorizing cities 
to condemn and take lands for public use as a street did not, either in terms, or by 
necessary implication, authorize the taking of property already dedicated to a public 
use, and land held by a railroad corporation for right of way and for the purposes of 
depots is so dedicated. City of Terre Haute v. Evansville, etc., E. Co., 149 Ind. 174; 



225 IMPROVEMENT OF STREETS. § 218 

Cincinnati, etc., E. Co. v. City of Anderson, 139 Ind. 490; Steel v. Empson, 142 Ind. 
397; City of Valparaiso v. Chicago, etc., R. Co., 123 Ind. 467. 

Same— Eciilroad yards, eng-iue-house, coal-box, etc.— The use of the ground by a 
railroad company for the purposes above mentioned is a public use, and where the use 
of the ground for railroad purposes and for street purposes may coexist without impair- 
ment of the first use, it may be appropriated to the use of both ; but where such uses 
can not coexist, or where the first use is materially impaired or destroyed, the second 
public use ^ill be denied. Cincinnati, etc., E. Co. v. City of Anderson, 139 Ind. 490; 
Lake Erie, etc., E. Co. v. Town of Boswell, 137 Ind. 336; City of Ft. Wayne v. Lake 
Shore, etc., E. Co., 132 Ind. 558; City of Seymour v. Jeffersonville, etc., E. Co., 126 
Ind. 466; City of Valparaiso v. City of Chicago, etc., E. Co., 123 Ind. 467; Steel v. 
Empson, 142 Ind. 397. 

Same— Crossing- railroad rig-ht of way transversely— Implied power,— Under the 
general law permitting cities to establish streets, there is implied power to extend 
streets transversely across the right of way of a railroad when, in doing so, the uses for 
which such right of way is employed are not materially injured or destroyed. Steel v. 
Empson, 142 Ind. 397; Cincinnati, etc., E. Co. v. City of x4.nderson, 139 Ind. 490; Lake 
Erie, etc., E. Co. v. City of Kokomo, 130 Ind. 224; 3 Elliott Eailroads, §§ 1099, 1104, 
and notes; 1 Beach Pub, Corp., § 661. 

Eailroad— Eight of way— Crossing-— Taking* long-itudinaliy for highway.— Eailroad 
companies acquire the right to construct their tracks subject to the dominant right of 
the state to cross such tracks when the public necessity demands that new roads and 
streets shall be opened, but the right to take longitudinally is quite a different thing 
from the right to cross, and is governed by different rules. A municipal corporation, in 
the absence of legislation expressly or by necessary implication authorizing it, can not 
take a part of the right of way of a railroad company by constructing a public highway 
longitudinally to the right of way. City of Ft. Wayne v. Lake Shore E. Co., 132 Ind. 
558. 

Same— Eig-ht of Mg-hway to cross— Limitation of .—The rule that allows the con- 
struction of streets and other public highways across railroad tracks has its limitations. 
They can not be so constructed when by so doing the railroad company would be una- 
ble to use its track at the point of crossing for the purposes for which it was constructed. 
City of Ft. Wayne v. Lake Shore E. Co., 132 Ind. 558. 

Eailroad rig-ht of way— Injunction.— Where the municipal authorities have insti- 
tuted proceedings to appropriate a strip of ground for a street occupied by a railroad 
track, which strip is part of a continuous railroad, an injunction proceeding will he to 
prevent the appropriation. City of Seymour v. Jeffersonville, etc., E. Co., 126 Ind. 466. 

Same. — When the city oflicers have jurisdiction to open or extend a street, injunction 
will not lie ; but when the city has no authority to open or extend a street an injunction 
is an appropriate remedy. City of Terre Haute v. Evansville, etc., E. Co., 149 Ind. 
174; City of Seymour v. Jeffersonville, etc., E. Co., 126 Ind. 466; Tucker v. Sellers, 130 
Ind. 514; Bass v. City of Ft. Wayne, 121 Ind. 389; Smith v. Goodknight, 121 Ind. 315. 

Same— Act of 1891 authorizes the taking: for second use.— Under this section, as 
amended by the act of 1891, cities have the power to extend streets and alleys across 
property devoted to public use by railroads, and are authorized by said amended 
section to appropriate same to a second public use, although the same will be incon- 
sistent with the first. City of Terre Haute v. Evansville, etc., E. Co., 149 Ind. 174; 
Powell V. City of Greensburg, 150 Ind. 148. 

Same— Constitutional— Does not violate contract.— The speci-il charter of a railroad 
company is a contract with the state, but is subject to the right of eminent domain 
which remains in the state. The exercise of this power by the state, or by a municipal 
corporation under authority of the state, in the taking of the railroad right of way or 

CiT. AND To.— 15 



§ 218 . CITIES. 226 

property in the opening or extending of a street, is not an interference with the in- 
violability of the contract. City of Terre Haute v. Evansville, etc., R. Co., 149 Ind. 174. 

Diverting" street to anotliGr use. — A street can not be diverted from the use to which 
it was dedicated, and an additional burden can not be laid upon the property abutting 
on the street without lawful authority, and compensation paid or tendered. Lostutter 
V. City of Aurora, 126 Ind. 436 ; Elliott Roads and Streets, pp. 159-161. 

Use of streets— Easement— Expansive,— The easement in a street is not limited to 
the particular methods of use in vogue vrhen the easement was acquired, but includes 
all new and improved methods, the utility and general convenience of which may after- 
wards be discovered and developed in aid of the general purpose for which highways 
are designed. It is not material that these new and improved methods of use were not 
contemplated by the owners of the land when the easement vras acquired, and are 
more onerous to him than those then in use. Magee v. Overshiner, 150 Ind. 127 ; 
Elhott Roads and Streets, p. 529. 

Power Over Streets, Alleys and Bridges — Duties — Liabilities — Obstruc- 
tions — Negligence — Actions — Damages. 

Streets— Definition— A g'eneric word.— A public street is a public highway, and a 
sidewalk is a part of the street, and public highways belong, from side to side and from 
end to end, to the public. The word "street" is a generic one, embracing sidewalks, 
and under an authority to improve streets a municipal corporation may improve side- 
walks. State V. Berdetta, 73 Ind. 185, 188; Bybee v. State, 94 Ind. 443, 446; City of 
Kokomo V. Mahan, 100 Ind. 242, 243; Taber v. Grafmiller, 109 Ind. 206, 209; Dooley v. 
Town of Sulhvan, 112 Ind. 451, 453; Wiles v. Hoss, 114 Ind. 371, 378; Town of Rose- 
dale V. Ferguson, 3 App. 596, 598; City of Indianapolis v. Higgins, 141 Ind. 1 ; Common 
Council, etc., v. Croas, 7 Ind. 9; Sims v. City of Frankfort, 79 Ind. 446; State v. Moriar- 
ity, 74 Ind. 103, 104; White v. Chicago, etc., R. Co., 122 Ind. 317, 326; State v. Mathis, 
21 Ind. 277; West v. Blake, 4 Blackf. 234; Conner v. President, etc., 1 Blackf. 43; El- 
liott Roads and Streets, p. 17. 

Every street is a highway, but every highway is not a street. Common Council, etc., 
V. Croas, 7 Ind. 9; City of Indianapolis v. Higgins, 141 Ind. 1. 

Sidewalks. — A sidewalk is a part of a street, and a city's authority over a street ex- 
tends over the sidewalk, as a part of the street. City of Frankfort v. Coleman, 19 App. 
368 ; Taber v. Grafmiller, 109 Ind. 206; City of Kokomo v. Mahan, 100 Ind. 242; State 
V. Berdetta, 73 Ind. 185. 

Power over streets, alleys, sidewalks and bridg'es.— The common councils of cities 
have exclusive power over streets, sidewalks, alleys and bridges, and to regulate the 
use thereof. Kistner v. City of Indianapolis, 100 Ind. 210; Terre Haute, etc., R. Co. v. 
Bissell, 108 Ind. 113 ; Lowrey v. City of Delphi, 55 Ind. 250; City of Wabash v. Carver, 
129 Ind. 552; Spicer v. Board, etc., 126 Ind. 369; Wood v. Mears, 12 Ind. 515; City of 
Indianapolis v. Consumers', etc., Co., 140 Ind. 107; Grove v. City of Ft. Wayne, 45 Ind. 
429; Indianapohs, etc., R. Co. v. State, 37 Ind. 489. 

Limit of power to reg'ulate streets. — The exclusive power of a city to regulate and 
control the use of its streets is not restricted to that of transit alone, but also extends 
to the laying of gas and water pipes, and to the promotion of the public health and con- 
venience. City of Indianapolis v. Consumers', etc., Co., 140 Ind. 107; Cummins v. City 
of Seymour, 79 Ind. 491; Elliott Roads and Streets, pp. 305, 360. 

Same— Contract rig"hts.— The power of a city to regulate and control the use of its 
streets does not give such city the additional right to prohibit, annul, or destroy rights 
arising out of a vahd contract. City of Indianapolis v. Consumers', etc., Co., 140 Ind. 
107. 

The grant of a right by a city to a gas company to lay and repair mains in the street 



227 IMPROVEMENT OF STREETS. § 218 

can not be subsequently taken away from such company on the ground that new and 
other methods of hnproving streets had been introduced and adopted by the city after 
such grant had been made, and especially is this true where the original grant bound 
such company to speedily repair such portions of the street as it opened for the purpose 
of laying and repairing such mains. Nor can such city, oy a subsequent ordinance, re- 
quire such company to first obtain permission of it to lay a main in or upon a street or 
to repair its mains, when it had that right, without first obtaining such permission, 
under its original grant or franchise. City of Indianapohs v. Consumers', etc., Co=, 140 
Ind. 107. 

Cleaning' street — G-arbag'e. — A city has exclusive power over streets within the cor- 
porate limits, and the cleaning of its streets when duly exercised can not be controlled 
by the courts. In such work if unavoidable injury results, no liability ensues, because 
the doing of what the law authorizes can not be a nuisance so as to give a right of 
action. But collecting garbage and filth from the streets and depositing the same in a 
mass upon some other street may create a nuisance, and if it does the city must be re- 
sponsible in damages. City of New Albany v. Slider, App. Ct., Jan. 10, 1899. 

The legislature in granting to cities and towns exclusive authority over the streets 
did not abridge its power to define and punish misdemeanors, nor did the legislature 
thereby repeal or modify the statutes then in force, making acts relating to streets in 
towns or cities crimes. The wrongful obstruction of a public street or sidewalk in a 
city or town is a misdemeanor under the criminal laws of the state, and a city or towm 
can not enact an ordinance prescribing a penalty for any one who obstructs such street. 
City of Indianapolis v. Higgins, 141 Ind. 1. 

Streets held in trust. — The streets of a city are held in trust by the municipal cor- 
poration for public purposes, and the city can not authorize a permanent obstruction 
thereof for private uses. Pettis v. Johnson, 56 Ind. 139; State v. Berdetta, 73 Ind. 185; 
Adams v. Ohio, etc., Co., 131 Ind. 375; Sims v. City of Frankfort, 79 Ind. 446; SElUott 
Railroads, § 1089. 

Pi'esumption— Dama§"es. — The presumption is that a street was legally laid out and 
opened, and that property owners damaged thereby claimed and received compensa- 
tion. Sims V. City of Frankfort, 79 Ind. 446. 

Statute construed— Gravel roads and turnpikes— Taxation for.— The above sec- 
tion, as amended, March 6, 1891, as to the provision that ''property within the city shall 
not be taxed for the purpose of making, opening, improving or repairing any road or 
bridge wdthout the limits of said city," has reference only to the exemption of city prop- 
erty from the ordinary road tax. Property within the limits of a city is subject to tax- 
ation for the building and repair of gravel roads and turnpikes. Byram v. Board, etc., 
145 Ind. 240; Read v. Yeager, 104 Ind. 195. 

Corporations occupying' streets under municipal franchises— Duties to public— 
Mandamus^Injunction. — Telegraph, telephone, water, gas and other like companies 
that have received from public authorities franchises for occupying the streets, which 
also provide for the accommodation of the general public, owe a duty to serve all per- 
sons, who make proper application for such service and who comply Avith such reason- 
able rules as may be fixed, and pay such reasonable compensation as may be required. 
If such companies neglect and refuse to perform such duty, they may be compelled to 
do so by writ of mandamus ; and when the maximum rate to be cliarged consumers is 
prescribed by the ordinance granting the franchise to use the streets, the companies 
may be enjoined from charging consumers more than the maximum rate. Coy v. In- 
dianapolis, etc., Co., 146 Ind. 655; Portland, etc., Co. v. Keen, 135 Ind. 54; Central, 
etc., Co. v. Fehring, 146 Ind. 189 ; City of Rushville v. Rushville, etc., Co., 132 Ind. 575 ; 
Westfield, etc., Co. v. Mendenhall, 142 Ind. 638. 

Actions upon contract or in tort.— Actions may be maintained upon contract or in 
tort against corporations occupying the street, and under duty to serve the public, for 



§ 218 CITIES. 228 

breaches of such duty. In tort a wider range of inquiry as to damages is permissible 
than in an ordinary action for simple breach of contract. Coy v. Indianapolis, etc., Co., 
146 Ind. 655; Lake Erie, etc., E. Co. v. Acres, 108 Ind. 548; Cincinnati, etc., E. Co. v. 
Eaton, 94 Ind. 474. 

Where a gas company violates an order of a court of equity, enjoining it from charg- 
ing the consumers more than a specified sum for gas, it is no defense for a prosecution 
for contempt that the officers of the company acted in good faith, and without any in- 
tention to violate an order of court. Thistlethwaite v. State, 149 Ind. 319. 

Exclusive privileg'es. — A municipal corporation can not grant to a private corpora- 
tion the exclusive privilege of using its streets for the purpose of supplying the corpora- 
tion, or its citizens, with light, water, fuel or the like. Indianapohs, etc., E. Co. v. 
Citizens' E. Co., 127 Ind. 369, 388; Crowder v. Town of Sullivan, 128 Ind. 486, 489 ; 
City of Eushville v. Eushville, etc., Co., 132 Ind. 575, 578; Citizens', etc., Co. v. Town 
of Elwood, 114 Ind. 332; City of Vincennes v. Citizens', etc., Co., 132 Ind. 114; Elliott 
Eoads and Streets, pp. 566, 569; 1 Beach Pub. Corp., § 596. 

An ordinance which specifically and by name grants to a company (in this instance 
a natural gas company) the right to use its streets, etc., for the purpose of laying its 
pipes, etc., simply grants a license or permission to the particular company to use the 
streets for the purpose designated, and does not grant a special and exclusive franchise 
to the company to occupy and use the streets of the city for said purpose. City of 
Eushville v. Eushville, etc., Co., 132 Ind. 575, 578. 

Streets— Exclusive grant to use.— Neither a void grant of an exclusive privilege to 
use the town streets to one company, nor a refusal to grant a special privilege to an- 
other company, authorizes the latter company to use the streets. Citizens', etc., Co. 
V. Town of Elwood, 114 Ind. 332, 333. 

Use of streets, how reg'ulated. — A special ordinance granting a permissive license 
to a designated corporation is effective. When a municipality attempts to regulate the 
mode of using its streets it must do so by a general ordinance ; but when it simply 
grants a privilege to use the streets, and does not undertake to regulate the entire sub- 
ject, a general ordinance is not indispensably necessary to authorize the licensee to use 
the streets. The rights acquired under a mere permissive license are subject to control 
under the delegated governmental power vested in the municipality. Crowder v. Town 
of Sullivan, 128 Ind. 486, 489. 

Natural g'as— Exclusive privileges. — A municipal corporation has no power to grant 
a natural gas company the exclusive privilege of using its streets, and a company ob- 
taining such a grant is bound to take notice that it is void. Citizens', etc., Co. v. Town 
of Elwood, 114 Ind. 332, 333; Crowder v. Town of Sullivan, 128 Ind. 486, 489; City of 
Eushville v. Eushville, etc., Co., 132 Ind. 575, 578. 

A town can not enjoin a natural gas company from using its streets upon the ground 
that it has conferred the exclusive right to their use upon another gas company, but it 
may do so on the ground that the defendant has not obtained a license so to do. Citi- 
zens', etc., Co. V. Town of Elwood, 114 Ind. 332, 334. 

The act of 1887 relating to natural gas (E. S. 1894, § 4306), requires that a general or- 
dinance shall be adopted by municipal corporations, giving, upon equal terms, substan- 
tially the same privileges to all companies. Citizens', etc., Co. v. Town of Elwood, 114 
Ind. 332, 336. 

Exclusive possession of street.— A city can not give an exclusive right to a street 
railway company to occupy all its streets, to the exclusion of all other companies and 
so prevent it afterward giving similar grants to other companies. But if it make such 
a grant and then make a similar grant to another company, that company which first 
occupies a street, or which first enters upon the construction of a particular line of 
street railroads, and has expended its money in the prosecution of the work, is entitled 
to the possession of such street, or to the streets over which such particular line passes, 



229 IMPROVEMENT OF STREETS. § 218 

although the effect is that such company thus acquires the exclusive possession of .such 
street or streets for the purpose of a street railroad. Indianapolis, etc., R. Co. v. Citi- 
zens', etc., E. Co., 127 Ind. 369, 394. 

Sale of street— Ultra vires.— The common council of a city have no authority to 
make contracts for the sale or letting of any public street, or any portion thereof. They 
may grant an easement in a street in a proper case. They can not grant to a railroad 
company the right to appropriate to its sole use a street. Such act would be ultra vires. 
Indianapohs, etc., R. Co. v. State, 37 Ind. 489; Tate v. Ohio, etc., R. Co., 7 Ind. 479. 

Use of streets — Gas companies— Neg-lig'eiice.-Gas companies maintaining mains 
and pipes in the streets for the conduct and delivery of gas to patrons owe a duty to the- 
citizens and property owners to use reasonable and ordinary care in so planting their 
pipes and mains, and the keeping of them in repair, as to prevent the escape of gas 
therefrom in such quantities as to become dangerous to life and property, and for fail- 
ure to perform this duty they are liable to persons injured thereby, in the absence of 
concurring negligence. Richmond Gas Co. v. Baker, 146 Ind. 600; Mississinewa Min- 
ing Co. V. Patton, 129 Ind. 472; Lebanon, etc., Co. v. Leap, 139 Ind. 443; McGahan v. 
Indianapolis, etc., Co., 140 Ind. 335; Consumers', etc., Co. v. Perrego, 144 Ind. 350. 

Electric li§ht companies occupying* streets— Duties and liabilities of company 
and city. — Where a corporation has been authorized by the city to erect and maintain 
poles, wires, lamps and cables in the streets for electric lights, it is the duty of such cor- 
poration to keep watch over these appliances, and the city is liable only in cases wherein, 
after actual or constructive notice of the existence of danger growing out of or caused 
by some defect in the poles, wires or other appliances, it fails to use diligence in ob- 
viating the danger thus created; the corporation occupying the streets for such purpose 
is not an insurer of the safetj'^ of the public against all dangers arising from the lawful 
placing in the streets of such appliances, but it is bound to know the dangers which 
may naturally be caused by such use of the streets, and to guard against the same by 
the exercise of all the foresight and caution which can be reasonably expected of pru- 
dent men under such circumstances. City of Denver v. Sherrett, 88 Fed. Rep. 226. 

Notice of defect. — If an employe of an electric light company occupying the streets, 
whose duty it is to report defects to the company, while in the line of his employment 
discover defects, such discovery is notice to the company. City of Denver v. Sherret, 
88 Fed. Rep. 226. 

Prescription — Permissive possession. — Mere permissive possession of a part of a 
street for the statutory period of limitation will not confer title as against the city. 
There can be no permanent, rightful possession of a public street. Sims v. City of 
Frankfort, 79 Ind. 446, 451 ; Strosser v. City of Ft. Wayne, 100 Ind. 443, 450; Adams v. 
Ohio, etc., Co., 131 Ind. 375, 378; Brooks v. Riding, 46 Ind. 15. 

Prescription -Injunction— Pleading'.— In an action for an injunction by a lot- 
owner against a city, where the complaint alleged that the plaintiff's lot had been im- 
proved with reference to the recognized line of the street as laid out and used for more 
than twenty years, and while the municipal officers stood by and saw such improve- 
ment made without objection, and that the city was about to sever from the side of the 
lot a strip of ground claimed as a part of the street, without an assessment and tender 
of damages, an answer that an ordinance to improve that street was duly passed, notice 
given, proposals received and a contract made for grading and graveling the street, and 
that upon a survey by the proper officer, the strip of ground appeared to be a part, of 
the street properly dedicated to the public use and platted in the original plat, was suf- 
ficient on demurrer. Sims v. City of Frankfort, 79 Ind. 446, 448." 

Private occupation of street.— The statute of limitations operating alone can not de- 
prive a city of the right to its streets as trustee for the public; nor is the occupancy by 
a private party of a portion of a street by temporary and inexpensive structures for 
whatever time, inconsistent with the right of the public. Cheek v. City of Aurora, 92 
Ind. 107, 114. 



§ 218 CITIES. 230 

Laches by officers.— Laches by a city or its officers can not deprive the public of its 
light to a street. Cheek v. City of Aurora, 92 Ind. 107, 114. 

Street abandoned— License.— A municipal corporation can not surrender the public 
streets to a mere hcensee, nor can it, by failing to improve a part of a street, abandon 
the right to that part not improved. Sims v. City of Frankfort, 79 Ind. 446, 454; Town 
of Freedom v. Norris, 128 Ind. 377, 382; City of Tell City v. Bielefeld, 20 App. 1. 

Preventing" obstructions. — A city has power to prevent improper obstructions of 
streets and sidewalks. City of Terre Haute v. Turner, 36 Ind. 522. 

Eemoval of obstructions.— Though a city has the power by its own act to remove 
obstructions from its streets, it may nevertheless by suit prevent them or obtain their 
removal. Cheek v. City of Aurora, 92 Ind. 107, 112. 

A city may remove obstructions from the streets. If done in a proper and careful 
manner the city will not be liable for damages. Scales in a street, placed there by per- 
mission of the city, may be removed by it. City of Tell City v. Bielefeld, 20 App. 1 ; 2 
Beach Pub. Corp., §§ 1234 n., 1235. 

House-moying" — Control of. — The moving of a house along a public street of a city is 
an extraordinary use thereof for an unusual purpose, which may be controlled or de- 
nied ; and the owner of such a house can not insist on so moving it if such moving will 
result in the destruction of the property of others. Wilhams v. Citizens' R. Co., 130 
Ind. 71, 75. 

The courts have the power to restrain the moving of a house across a -street electric 
railroad when such moving will result in the stopping of the cars an unnecessary length 
of time, and the cutting or destruction of the wires, even though the common council 
of the city have failed or refused to take any steps to prevent such injury or destruc- 
tion. WilKams v. Citizens' R. Co., 130 Ind. 71, 76. 

Construction of canal in public street— Abandonment of canal— Revival of orig-- 
inal easement. — AMiere the state entered upon and constructed the Wabash and Erie 
Canal in and through a public street in the town, now city, of Logansport, the ease- 
ment of the public and abutting lot owners in such street was not thereby destroyed, 
but remained in abeyance during the occupancy and use of the street for the purposes 
of such canal ; and upon the subsequent abandonment of the canal, wdien the street 
was no longer occupied or used by or for such canal, the original easement of the pub- 
he and the private rights of abutting lot owners at once revived and became effective in, 
on and over such street. City of Logansport v. Shirk, 88 Ind. 563. 

Duties— Liabilities— Streets, sidewalks, crossing's,- It is the duty of an incorpo- 
rated city to keep all its streets, sidewalks and crossings in a reasonably safe condition 
for ordinary travel, and free from unnecessary and dangerous obstructions, so as not to 
endanger the persons of those lawfully using the same, and it is liable for negligently 
suffering them to become and remain unsafe to any one injured thereby without fault 
upon his part. City of Lafayette v. Larson, 73 Ind. 367, 369; City of Delphi v. Lowery, 
74 Ind. 520, 523; City of Crawfordsville v. Smith, 79 Ind. 308, 310; Murphy v. City of 
Indianapolis, 83 Ind. 76, 77; Turner v. City of Indianapohs, 96 Ind. 51, 55; City of Au- 
rora V. Bitner, 100 Ind. 396, 399; Glantz v. City of South Bend, 106 Ind. 305, 309; City 
of Ft. Wayne v. Patterson, 3 App. 34, 37; Park v. Board, etc., 3 App. 536, 539; Trout v. 
City of Elkhart, 12 App. 343; Gaston v. Bailey, 14 App. 581; Buscher v. City of Lafay- 
ette, 8 App. 590; Town of Salem v. Walker, 16 App. 687; City of Huntington v. Bi-een, 
77 Ind. 29; City of Washington v. Small, 86 Ind. 463; City of Goshen v. England, 119 
Ind. 368; City of Michigan City v. Boeckling, 122 Ind. 39; City of Logansport v. Dick, 
70 Ind. 65; City of Columbus v. Strassner, 124 Ind. 482; Higert v. City of Greencastle, 
43 Ind. 574; Lowery v. City of Delphi, 55 Ind. 250; City of Aurora v. Colshire, 55 Ind. 
484. 

Streets and turnpikes— When reasonably safe for travel— How determined.— 
Whether a street or turnpike is reasonably safe for travel is a question to be determined 



231 IMPROVEMENT OF STREETS. § 218 

by the surrounding circumstances, the nature and surface of the soil over which the 
road is made, the natural obstructions and obstacles to be overcome, its situation and 
locahty, and the kind and amount of public travel which pass over it. Sale v. Aurora, 
etc., 147 Ind. 327; 2 Dillon Munic. Corp., §§ 1006, 1008, 1016, 1019. 

Not an insurer of its streets. — A municipal corporation is not an insurer of the^ 
safety of its streets, but is bound to exercise reasonable care and diligence to keep them 
in a reasonably safe condition for use, which includes the duty to keep them free from 
dangerous obstructions ; and liability attaches for negligence in regard thereto, after 
notice is imputed to it, whether such notice be actual or constructive. City of Eich- 
mond V. Mulholland, 116 Ind. 173, 174; Town of Monticello v. Kennard, 7 App. 135, 
139; Gaston v. Bailey, 14 App. 581 ; City of Evansville v. Wilter, 86 Ind. 414. 

Not an insui'er ag-ainst accident. — A city is not an insurer against accidents, and is 
not required to keep its streets and sidewalks free from irregularities and trifling de- 
fects. McQueen v. City of Elkhart, 14 App. 671; City of Indianapohs v. Cook, 99 
Ind. 10. 

A municipal corporation is not an insurer of the safety of its streets, and to charge it 
with liability for injuries resulting from defects in its streets it must be affirmatively 
shown that the municipality was guilty of negligence. City of Franklin v. Harter, 127 
Ind. 446, 447; Gaston v. Bailey, 14 App. 681. 

City and owner of fee— Liability. — Neither the city nor the owner of the fee in a 
street guarantees the absolute safety of the sidewalk ; and negligence is essential to the 
liability of the owner for an injury received upon such walk. Gaston v. Bailey, 14 
App. 581. 

Liability for injury to child— Neg'lig'ence of parents.— The liability of a city is the 
same where a child, rightfully in a street, sustains an injury from a defect created 
therein by the city, as where an adult, who is free from fault, is injured from like cause. 
Negligence can not be imputed to parents who permit a child of tender years to go to a 
place where it has a right to be, and at which there is no reason to suspect danger, and 
which is safe, unless another is guilty of a breach of duty. City of Indianapolis v. Em- 
melman, 108 Ind. 530; Penso v. McCormick, 125 Ind. 116, 121. 

Excavations — Embankments, etc.— Guards.— Cities should properly guard, by rail- 
ings or otherwise, excavations, embankments or other dangerous places, in or near 
streets, so as to prevent persons from falling into or over the same. . City of Aurora v. 
Colshire, 55 Ind. 484; Town of Elkhart v. Eitter, 66 Ind. 136; City of Indianapolis v. 
Scott, 72 Ind. 196; City of Delphi v. Lowery, 74 Ind. 520; Dooley v. Town of Sullivan, 
112 Ind. 451; City of Logansport v. Dick, 70 Ind. 65; Park v. Board, etc., 3 App. 536; 
Noblesville, etc., Co. v. Teter, 1 App. 322; City of Indianapolis v. Doherty, 71 Ind. 5; 
City of Indianapolis v. Emmelman, 108 Ind. 530; Senhenn v. City of Evansville, 140 
Ind. 675 ; City of Ft. Wayne v. DeWitt, 47 Ind. 391 ; Stevens v. City of Logansport, 76 
Ind. 498; Elliott Eoads and Streets, p. 453. 

Dang-er signals— Keeping* watch.— Only ordinary care is required of a municipal 
corporation, its agents and contractors, and it is sufficient to show that proper signals 
or guards were placed about an excavation on quitting work, unless there are circum- 
stances peculiar to the particular case making it necessary that a watch be kept ; and if 
such signals or guards are removed during the night by a wrong-doer, there is no lia- 
bility. Dooley v. Town of Sullivan, 112 Ind. 451. 

Natural causes producing excavation.— The facts that during the making of a lawful 
excavation by a third person, the sidewalk had given away because of a thaw, on the 
day of the accident, are admissible under the general denial. Town of Elkhart v. Eit- 
ter, 66 Ind. 136. 

When not liable.— The rule requiring cities to keep their streets in a reasonably safe 
condition for public travel does not extentl to one who is not a traveler. One who 
sustains injuries by falling from private premises over a bank made by grading a street 



§ 218 CITIES. 232 

cannot recover damages from the city. Dorsett v. City of Greencastle, 141 Ind. 38; 
Mulvane v. City of S. Topeka, 45 Kan. 45; Goodin v. City of Des Moines, 55 la. 67; 
Young V. District of Columbia, 3 Mc Arthur 137. 

City — Active vig-ilance— Traveler— Ordinary care.— A city is bound to use active 
vigilance to discover and repair defects in its streets and sidewalks, while the traveler 
must use ordinary care to avoid injury. City of Washington v. Small, 86 Ind. 462; 
Town of Gosport v. Evans, 112 Ind. 133 ; City of Evansville v. Wilter, 86 Ind. 414; City 
of Loganspoii v. Justice, 74 Ind. 378. 

A complaint against a city to recover for an injury in consequence of a defective 
sidewalk, averring that the sidewalk had been negligently left out of repair and danger- 
ous for two months, of which the city had notice ; that when walked upon it tipped, 
because its support had been washed away, in consequence of which the plaintiff, in 
passing, without fault, and being ignorant of danger, slipped and fell, etc., sufficiently 
shows care by the plaintiff and negligence by the defendant. City of Washington v. 
Small, 86 Ind. 462. 

A municipal corporation is required to exercise vigilance in keeping its streets and 
sidewalks in a reasonably safe condition for travel by night as well as by day ; but that 
a pavement has become uneven, or that bricks therein may be displaced by the action 
of the elements, does not necessarily involve such municipality m liability, if the de- 
fect can be readily discovered and easily avoided by persons exercising due care, or if 
the defect be of such a nature as not of itself to be dangerous to persons so using the 
walk. Town of Gosport v. Evans, 112 Ind. 133. 

Dilig"ence in making" repairs. — A city is bound to exercise reasonable diligence to 
repair defects in its streets and bridges, or to prevent accidents therefrom after such de- 
fects are known, and when on failure, after notice, to repair such defects in due time, 
injury occurs therefrom, the city is liable. City of Logansport v. Justice, 74 Ind. 378, 
385. 

When a street within the limits of a city is in common use by the people, it is the 
duty of the city to keep it in a reasonably safe condition for ordinary travel, whether it 
be what is technically called an improved street or not. City of Lafayette v. Larson, 
73 Ind. 367, 369. 

The duty of a city to persons lawfully using a street therein in a reasonably prudent 
manner is not fully discharged by making the traveled part of the street safe, but such 
measures as ordinary prudence requires must be taken to prevent such persons from 
falling into dangerous places along the sides or in close proximity to the termination of 
the street. City of Delphi v. Lowery, 74 Ind. 520, 522. 

Presumption as to condition of street -Obstruction.— Any person traveling a side- 
walk of a city, which is in constant use by the public, has a right, when using the same 
with due diligence, to presume, and act upon the presumption, that it is reasonably safe 
for ordinary travel throughout its entire width from all dangers and annoying obstruc- 
tions of a permanent character. City of Indianapolis v. Gaston, 58 Ind. 224; Town of 
Elkhart v. Eitter, 66 Ind. 136; Gaston v. Bailey, App. Ct., May 24, 1899; City of Bluff- 
ton V. McAfee, App. Ct., May 24, 1899. 

Streets improved and unimproved.— A complaint against a city for personal injury 
resulting from a defective street, which, with the other necessary averments, alleged 
that the city had negligently permitted the street to become dangerous to use, and that 
the plaintiff was without fault, was good on demurrer, though it appeared that the 
street had never been improved or graded, that the defect was caused by the action of 
surface water, and that the plaintiff had knowledge of it. Murphy v. Citv of Indianap- 
ohs, 83 Ind. 76, 77. 

Leng'th of time— Dangerous alley— Notice.— In an action for damages for an injury 
resulting from dangerous defects in a public alley, one witness testified that the defect 
had existed for six weeks prior to the injury ; other witnesses, in some measure, corrob- 
orated this testimony. The verdict of the jury indicated that the jury beheved and 



233 IMPROVEMENT OF STREETS. § 218 

acted upon this testimony. From the length of time the defect had existed, and the 
other facts and circumstances of the case, the jury was warranted in inferring knowledge 
on the part of the city of the existence of such defect. City of Indianapolis v. Murphy, 
91 Ind. 382, 383. 

Notice of defect. — Actual notice on the part of a city of a defective street or side- 
walk, is not necessary, if the defect has existed for such a time that with reasonable 
dihgence the defect might have been known. City of Frankfort- v. Coleman, 19 App. 
368; Buscher v. City of Lafayette, 8 App. 590; City of Evansville v. Wilter, 86 Ind. 
114; City of Logansport v. Justice, 74 Ind. 378. 

Leng"tlr of time. — ^Miere an obstruction, of which the city has no notice, has been 
placed on a street by a third person, and is permitted to remain an hour and three- 
quarters, when it occasions an injury to a passer-by, the city is not guilty of negligence, 
and is not hable. City of Warsaw v. Dunlap, 112 Ind. 576, 582. 

Where a dangerous obstruction has existed for months, notice of it v/ill be presumed. 
City of Evansville v. Wilter, 86 Ind. 414. 

Notice to couucilmau sufficient. — In this state, notice to a councilman of a city of 
the dangerous condition of a street or bridge w^ithin the city is notice to the city. City 
of Lafayette v. Larson, 73 Ind. 367, 370; City of Logansport v. Justice, 74 Ind. 378, 384; 
City of Columbus v. Strassner, 124 Ind. 482, 489; Jewell v. Town of Sullivan, 5 App. 
188"^, 192. 

Notice to street commissioner.— Notice to street commissioner of a defective street is 
notice to city. City of Lafayette v. Larsen, 73 Ind. 367; Turner v. City of Indianapo- 
lis, 96 Ind. 55; City of Huntingburg v. First, App. Ct., March 10. 1899. 

31aj^or. — Notice to city may be inferred from the fact that the accident occurred im- 
mediately in front of the residence of the mayor of the city, and over which he passed 
day after day. City of Michigan City v. Ballance, 123 Ind. 334. 

Notice of defect in streets actual or constructive— When necessary.— ''^Tiere the 
duty to keep its streets in safe condition rests upon the corporation, it is liable for 
injuries caused by its neglect or omission to keep the streets in repair, as well as for 
those caused by defects occasioned by the wrongful acts of others, but, as the basis of 
the action is negligence, notice to the corporation of the defect which caused the injury, 
or of facts from whi-ch notice thereof may reasonably be inferred, or proof of circum- 
stances from which it appears that the defect ought to have been know^n and remedied 
by it, is essential to liability." 2 Dillon Munic. Corp., §1024; City of Madison v. 
Baker, 103 Ind. 41 ; City of Indianapolis v. Murphy, 91 Ind. 382; City of Logansport v. 
Justice, 74 Ind. 378 ; City of Aurora v. Bitner, 100 Ind. 396 ; City of Michigan City v. Bal- 
lance, 123 Ind. 334; City of Lafayette v. Larson, 73 Ind. 367; City of Indianapolis v. 
Scott, 72 Ind. 197; City of Ft. Wayne v. Patterson, 3 App. 34; Turner v. City of Indian- 
apolis, 96 Ind. 51, 58; Dooley v. Town of Sullivan, 112 Ind. 451; City of Ft. Wayne v. 
De Witt, 47 Ind. 391 ; City of Evansville v. Wilter, 86 Ind. 414 ; City of Washington v. 
Small, 86 Ind. 462; Town of Spiceland v. Aher, 98 Ind. 467; City of Huntington v. 
Burke, 12 App. 133; City of Evansville v. Senhenn, 151 Ind. 42. 

Defects— Notice when presumed.— Notice to a city of the defective condition of a 
street, sidewalk or alley may be inferred from evidence that the defect was open and 
notorious and had existed for so long a time as to raise the inference that the proper of- 
ficers of the city, by the exercise of due diligence, might have known of its existence. 
City of Lafayette v. Larson, 73 Ind. 367, 370; City of Evansville v. Wilter, 86 Ind. 414, 
420; City of Washington v. Small, 86 Ind. 462, 471 ; City of Indianapolis v. Murphy, 91 
Ind. 382, 383; City of Ft. W^ayne v. Patterson, 3 App. 34, 37; City of Logansport v. Jus- 
tice, 74 Ind. 378; City of Indianapohs v. Scott, 72 Ind. 196; City of Aurora v. Bitner, 
100 Ind. 396; City of Michigan City v. Ballance, 123 Ind. 334; City of Madison v. Ba- 
ker, 103 Ind. 41 : Town of Elkhart v. Bitter, 6(5 Ind. 136; City of Mt. Vernon v. Hohen, 
Ind. App. Ct., April 28, 1899. 



§ 218 CITIES. 234 

In an action against a city for negligently permitting a street to be out of repair, 
whereby the plaintiff was injured, the complaint, when questioned for the first time in 
the supreme court, will be held good as to the matter of notice, when its averments 
plainly imply that the city had notice of the bad condition of the street when the plaint- 
iff was injured ; and after verdict it will be inferred that the notice was in time to have 
enabled the city to repair the street. City of Madison v. Baker, 103 Ind. 41, 43. 

Notice— Arrest of jiidg'ment. — A complaint in an action for a personal injury, which 
describes the street, the obstruction and the inj,ury, and states facts which show that 
the city, if dihgent in the discharge of its duty, would have had notice of the obstruc- 
tion, is good on motion in arrest of judgment. City of Evansville v. Wiiter, 86 Ind. 
414, 421. 

Obstriictioii— Notice— Complaint.— In a complaint against a city for an injury caused 
by an obstruction in a street, it is not enough to allege that the city negligently suffered 
an obstruction to be and remain in the street, but it must also appear that it had notice 
of the obstruction, or that it ought to have had such notice. Turner v. City of Indian- 
apohs, 96 Ind. 51, 57; Town of Spiceland v. AHer, 98 Ind. 467; City of Madison v. 
Baker, 103 Ind. 41 ; City of Ft. Wayne v. De Witt, 47 Ind. 391. 

Notice, presumption, fact. — Notice to the corporation of the unsafe co^ndition of a 
street may be inferred from the length of time it has existed, as well as from other 
facts and circumstances. ~\^Tiat is such a length of time must, in a great measure, de- 
pend on the circumstances of the particular case, and must, in most cases, be a question 
of fact to be submitted to the jury. City of Aurora v. Bitner, 100 Ind. 396, 401 ; City of 
Ft. Wayne v. Patterson, 3 App. 34, 38. 

Knowledg'e, pleading', time.— In an action against a city for injuries received from 
a defect in the street, the complaint averred that the excavation was in existence on the 
10th day of November, 1890, and that the injury was sustained on the 14th day of the same 
month. Such allegations are sufficient to impute knowledge to the city. City of Ft. 
Wayne v. Duryee, 9 App. 620, 621. 

"VMiere a city builds and maintains streets and sidewalks, which are reasonably safe 
for use by persons exercising ordinary care, it has fulfilled its duty in that respect. And 
pedestrians may presume that the city has done its duty in constructing and maintain- 
ing the same. Actual notice on the part of the corporation of the defective condition of 
a street or sidewalk is not necessary where such unsafe condition has existed for such 
time that, with reasonable diligence, it might have been known. Buscher v. City of 
Lafayette, 8 App. 590, 595. 

Act of corporation — Notice not necessary. — ^^.Tiere the defect in the street which 
caused the injury is attributable to the act of the municipal corporation itself, it is not 
necessary to prove notice. In making an improvement in the street the city is bound 
to take notice of such defects as ordinary skill and prudence will discover. City of Ft. 
Wayne v. Patterson, 3 App. 34, 38 ; Board, etc., v. Bacon, 96 Ind. 31 ; City of Ft. Wayne 
V. Coombs, 107 Ind. 75; City of Warsaw v. Dunlap, 112 Ind. 576; Board, etc., v. Pear- 
son, 120 Ind. 426; Elliott Roads and Streets, pp. 462, 644; 2 Dillon Munic. Corp., § 1024. 

A\Tiere the obstruction which causes the injury is not placed in the street by the city 
itself, there must be actual notice, or the obstruction must have remained in the street 
such a length of time as to make it the duty of the corporate authorities to take notice 
of its existence. City of Warsaw v. Dunlap, 112 Ind. 576 ; City of Lafayette v. Blood, 40 
Ind. 62; City of Evansville v. Wiiter, 86 Ind. 414; Corporation of Bluffton v. Mathews, 
92 Ind. 213 ; City of Madison v. Baker, 103 Ind. 41 ; City of Frankhn v. Harter, 127 
Ind. 446; City of Evansville v. Senhenn, 151 Ind. 42. 

Obstructions — Liability of city. — A city which permits an obstruction to remain an 
unreasonable length of time upon its streets or sidewalks, until the presumption arises 
that it had notice of such obstruction, is liable therefor to the same extent as if it had 



235 IMPROVEMENT OF STREETS. § 218 

itself placed the same there in the first instance. Senhenn v. City of Evansville, 140 
Ind. 675. 

Presumption concerniiig- obstructions.— The presumption is that an obstruction 
placed in a street is wrongfully placed and permitted to remain there. Senhenn v. City 
of Evansville, 140 Ind. 675. 

Obstructions and defects— Acts of third persons— Notice.— A city is not hable for 
an injury to a person caused by falling into an excavation in a sidewalk made by the 
owner of an adjoining lot, and not by the officers or agents of the city, left open, un- 
guarded, without barriers or lights in the night-time, where no notice of the condition 
of such excavation was had by the city, and no facts existed from w^hich notice to the 
city might reasonably be inferred. City of Ft. Wayne v. DeWitt, 47 Ind. 391 ; Turner 
Y. City of Indianapolis, 96 Ind. 51. 

Where an obstruction is placed in the street or sidewalk by a wrong-doer, on account 
of which a passer-by is injured, the city can not be held liable for such injury unless it 
has actual notice of the obstruction, or the same has remained on such street or side- 
walk such a length of time as to make it the duty of the corporate authorities to take 
notice of its existence. City of Warsaw v. Dunlap, 112 Ind. 576; Turner v. City of In- 
dianapolis, 96 Ind. 51 ; Town of Monticello v. Kennard, 7 App. 135; City of Evansville 
V. Senhenn, 151 Ind. 42; City of Ft. Wayne v. Patterson, 3 App. 34; City of Hunting- 
ton V. Breen, 77 Ind 29 ; City of Ft. Wayne v. Dewitt, 47 Ind. 391. 

Where a defective and unsafe condition of a street or sidewalk in a city is caused by 
the act- or omission of a third person, and the city, after due notice of the defect, fails 
to have it remedied within a reasonable time, it is as much responsible for an injury 
caused thereby as if the defect had had its origin in the acts of the city itself, through 
its officers in charge of the streets or otherwise. City of Huntington v. Breen, 77 Ind. 
29, 32; Higert v. City of Greencastle, 43 Ind. 574; Grove v. City of Ft. Wayne, 45 Ind. 
429; Senhenn v. City of Evansville, 140 Ind. 675; Town of Elkhart v. Eitter, 66 Ind. 
136; City of Logansport v. Dick, 70 Ind. 65; City of Aurora v. Bitner, 100 Ind. 396; 
City of Mt. Vernon v. Hohen, Ind. App. Ct., April 28, 1899. 

The corporation is entitled to notice of the defect, and to a reasonable time in which 
to remove it, when it has been caused by some third person. Town of Monticello v. 
Kennard, 7 App. 135; Turner v. City of Indianapolis, 96 Ind. 51; City of Huntington v. 
Breen, 77 Ind. 29; Town of Spiceland v. Alier, 98 Ind. 467; City of Ft. Wayne v. Pat- 
terson, 3 App. 34. 

The notice, however, may be either actual or constructive. Whenever the defect has 
existed such length of time as that, when its character and location and the other at- 
tendant circumstances are considered, the corporation, by the exercise of reasonable 
diligence, ought to have discovered and removed the defect, then it will be held liable 
for damages occasioned thereby to one himself without fault. Town of Monticello v. 
Kennard, 7 App. 139; City of Evansville v. Wilter, 86 Ind. 414; City of Indianapolis v. 
Murphy, 91 Ind. 382; City of Aurora v. Bitner, 100 Ind. 396. 

Neg'Iig-ence of third person contributing- to injur j'— Sufficiency of complaint.— 
Where one, in company with others, is injured while walking along a sidewalk, it is 
unnecessary, in an action for damages, to aver that those who were with plaintiff on 
the walk when the injury occurred w^ere likewise free from contributory negligence ; if 
the party himself is free from fault, the negligent defendant will be liable, although the 
negligence of some third person may have contributed to the injury, except where such 
third person was subject to the control and direction of the injured person, or was so 
identified with him in a common enterprise as to become responsible for his act. Town 
of Nappanee v. Euckman, 7 App. 361. 

Contributory neglig'ence of third person.— Persons who are injured by reason of 
defects or obstructions in streets, and who are free of fault, may recover for such in- 
juries, although the negligence of some third person may have contributed to the in- 



§218 CITIES. 236 

jury. Town of Knightstown v. Musgrove, 116 Ind. 121 ; Louisville, etc., R . Co. v. Creek, 
130 Ind. 139; City of Michigan City v-. Boeckling, 122 Ind. 39; Town of Nappanee v. 
Ruckman, 7 App. 361; City of Mt. Vernon v. Hohen, Ind. App. Ct., April 28, 1899. 

The concurring fault of the driver of the vehicle in which the plaintiff is riding will 
not defeat his action, w^hen he is himself free from fault ; in such case a husband's neg- 
ligence is not imputed to the wife. Town of Knightstown v. Musgrove, 116 Ind. 121 ; 
City of Michigan City v. Boeckhng, 122 Ind. 39; Louisville, etc., R. Co. v. Creek, 130 
Ind. 139; Miller v. Louisville, etc., R. Co., 128 Ind. 97. 

The contributory negligence of the driver and manager of a carriage will not defeat 
an action by one who was passively riding with him upon invitation for personal 
injuries caused by the negligence of town authorities in leaving a dangerous obstruction 
in the streets without proper safeguard, if the person injured be himself without fault. 
Town of Knightstown v. Musgrove, 116 Ind. 121. 

When neglig-ence of a third person is a defense.— Before the concurring negligence 
of a third person can be interposed to shield another, whose negligence has caused an 
injury to one who was without fault, it must appear that the injured person and the one 
whose negligence contributed to the injury sustained such a relation to each other in re- 
spect to the matter then in progress that, in contemplation of law, the negligent act of the 
third person w^as, upon the principles of agency, or co-operation in a common or joint 
enterprise, the act of the person injured. Town of Knightstown v. Musgrove, 116 Ind. 
121; Town of Nappanee v. Ruckman, 7 App. 361. 

Liability for acts of licensees— Notice.— A city is not liable for the acts of persons 
it licenses to use the streets, unless the thing authorized is intrinsically dangerous, or 
the municipal authorities have notice of the negligence of the licensees. City of^War- 
saw V. Dunlap, 112 Ind. 576; Ryan v. Curran, 64 Ind. 345; Dooley v. Town of Sullivan, 
112 Ind. 451; Corporation of Bluffton v. Mathews, 92 Ind. 213; City of Evansville v. 
Wilter, 86 Ind. 414; City of Madison v. Baker, 103 Ind. 41; Wheeler v. City of Ply- 
mouth, 116 Ind. 158 ; City of Michigan City v. Boeckling, 122 Ind. 39 ; City of Franklin 
v. Harter, 127 Ind. 446; Shnur v. Board, etc., Ind. App. Ct., April 7, 1899. 

Where a city authorizes a track to be laid in a plank-covered street for the use of a 
street raihvay company, the iron rails projecting four inches above the plank surface, 
and permits it to remain in that condition to the injury of persons using tiie street for 
travel, it is liable for its own negligence in failing to exercise the ordinary care and 
skill required of a municipal corporation in making and keeping its streets in a reason- 
bly safe condition for travel by persons employing ordinary care. City of Michigan 
City V. Boeckling, 122 Ind. 39. 

Citizen, when liable. — A citizen of a municipality is not responsible for an injury 
resulting from an unsafe condition of a street, unless his act caused it to become un- 
safe, or he has been guilty of some breach of duty in the particular instance. City of 
Elkhart v. Wickwire, 87 Ind. 77, 81 ; Wickwire v. Town of Angola, 4 App. 253, 258. 

If a person unlawfully places an obstruction in a street, or makes a dangerous exca- 
vation therein, he will be liable to another, who, without fault on his part, is injured or 
damaged by such obstruction. Wood v. Mears, 12 Ind. 5, 15; Turner v. Buchanan, 82 
Ind. 147; Perry v. Barnett, 65 Ind. 522; Silvers v. Nerdlinger, 30 Ind. 53. 

License to use streets, liability. — A license to use a public street does not exculpate 
the licensee from the consequences of his negligence. City of Elkhart v. Wickwire, 87 
Ind. 77, 80; Terre Haute, etc., Co. v. Teel, 20 Ind. 131. 

Where a private corporation, doing business in a city, in the conduct of its business, 
creates a nuisance which causes injury to the property of a private citizen, such corpo- 
ration will be responsible therefor in an action, notwithstanding such city may have at- 
tempted to authorize the doing of the acts which caused the nuisance. Terre Haute 
etc., Co. V. Teel, 20 Ind. 131 ; Pettis v. Johnson, 56 Ind. 139. 



237 IMPROVEMENT OF STREETS. § 218 

Firing' explosives.— A city is not liable for damages caused to the property of a citi- 
zen by the negligent manner in which other persons, acting under permission from the 
mayor, fire explosives within the city. Wheeler v. City of Plymouth, 116 Ind. 158, 
159. 

Complaint— Insufficiency — Notice. — In an action against a city for damages for in- 
juries sustained by plaintiff stepping into a "hole or broken place" while passing on 
and along the sidewalk in said city, the complaint is insufficient which does not show 
that defendant knew of the "hole and broken place" a sufficient length of time prior to 
the accident to have repaired the same in the exercise of reasonable care; nor that the 
"hole or broken place" had existed for such a length of time prior to the accident that 
appellant, in the exercise of reasonable care, should have discovered and repaired it. 
City of Huntington v. Burke, 12 App. 133 ; Town of Monticello v. Kennard, 7 App. 135; 
Town of Spiceland v. Alier, 98 Ind. 467. 

Complaint— Hole in street.— A complaint which alleges that there was a large hole 
or deep cut in the street near a ridge, that said ridge and cut had been allowed to re- 
main for more than two months, and that the city had notice thereof and failed to im- 
prove or repair said defect ; that plaintiff, while said street was in such condition, was 
driving thereon and over said ridge, and that the wheel of his wagon dropped from the 
top of said ridge into said cut or hole, and he was thereby thrown out and injured with- 
out any fault on his part, states a good cause of action against the city. City of Deca- 
tur V. Stoops, App. Ct., Jan. 10, 1899. 

Defective street — Complaint. — Where it appears from the complaint taken as a 
whole that the place where appellee was injured was upon a public street of the city, that 
the city had notice of the defective condition of the street, that the injury occurred 
within the corporate limits of the city, and at a place which it was the duty of the city 
to keep in repair, and it had negligently failed to repair the same for sixty days, and 
the plaintiff was without fault, the complaint is sufficient. City of Frankfort v. Cole- 
man, 19 App. 368. 

Defective street— Insufficient complaint. —A complaint against a town for a per- 
sonal injury, suffered by reason of a fall in the street, must show that the injury was 
caused by some specified act of negligence or omission of duty on the part of the town; 
and the charge that the town, while grading a street, caused the digging of a hole ten 
inches deep and twelve inches in diameter, which it negligently permitted to remain in 
the street for ten days, uncovered and unguarded, and that while walking along the 
street the plaintiff, without negligence on her part, stepped into the hole and was 
thrown down and injured, was insufficient. Tow^n of Eushville v. Poe, 85 Ind. 83, 84. 

Duty as to streets— Independent contractor— Notice— Liability.— The duty of main- 
taining streets in towns and cities in a safe condition for public use and travel rests pri- 
marily, as respects the public, upon the municipal corporation. This duty can not be 
evaded, superseded or cast upon others by a contract for the improvement of the streets. 
When having work done upon the streets or bridges, even by an independent contractor, 
it is the duty of the municipal corporation to see that such precautions are used ^Aiiile" 
the work is in progress as are reasonably necessary to protect travel, and failure to do so 
will render it liable to persons injured without fault upon their part. In such case, 
notice to the municipality of absence of proper precautions or guards is not necessary. 
City of Logansport v. Dick, 70 Ind. 65; Park v. Board, etc., 3 App. 536. 

If, at the time of the injuries complained of, the city had a contract with any person 
to furnish it with lumber, by the year, or otherwise, and to deliver the same to the city, 
and such person did in fact, under such contract, deliver said lumber, and pile the same 
in the street, the act of such person in delivering and piUng the same was not the act of 
the city, and the city could not be liable for any negligence of such person in placing the 
same in the street, unless it had notice thereof, either express or implied. City of 
Evansville v. Senhenn, 151 Ind. 42. 



§ 218 CITIES. 238 

Joint liability of city and contractor.— When one constructs a defective and danger- 
ous step on the sidewalk under the direction and supervision of the city, the city and 
such person are jointly and primarily liable to one injured thereby without fault. Kane 
V. City of Indianapohs, 82 Fed. Eep. 770. 

Joint liability. — If an incorporated city contract with a company for the construction 
of a water system, and the contractor dig a deep ditch across one of the streets and 
leaves it open and unguarded in the night-time, and a traveler, without fault, fall into 
the excavation and is injured, the city and contractor are jointly liable. City of Alex- 
andria V. Young, '20 App. 672. 

Xeg'lig'ence of contractor, — The general rule is that a municipal corporation is not 
responsible for the negligence of an independent contractor ; but this general rule does 
not apply where the corporation secures the right of way through private property, and 
expressly contracts to pay all damages occasioned by the construction of the public 
work; in such a case the maxim respondeat superior applies. Leeds v. City of Rich- 
mond, 102 Ind. 372, 381 ; City of Evans^dlle v. Senhenn, 151 Ind. 42. 

Officers and contractors— Torts. — A municipal corporation is not responsible for the 
torts of its officers, nor for breach of contract, when the acts of the officers are beyond 
the general powers of the corporation ; but it is responsible when the acts of the officers 
are within the general corporate powers, and the construction of a public sewer is an 
act within the scope of the general powers of a municipal corporation. Leeds v. City of 
Richmond, 102 Ind. 372, 381. 

Seryants — Liabilitj' for torts, — Where the servants of a municipal corporation, 
engaged in the service of the corporation, and in the construction of an authorized cor- 
porate work, commit a trespass, the municipality is liable. Platter v. City of Seymour, 
86 Ind. 323, 325. 

Co-servants — Neg'lig'ence of. — The rule that a master is not liable to a servant for an 
injury resulting from the neghgence of a fellow-servant is not apphcable to a suit 
against a municipal corporation. Turner v. City of Indianapolis, 96 Ind. 51, 56. 

E"\idence — Notice. — In actions against a city for injuries on account of a defective 
street, it may be proven that other persons w-ere injured on account of the same defect 
as tending to show notice to the city. City of Delphi v. Lowery, 74 Ind. 520; City of 
Goshen v. England, 119 Ind. 368; Toledo, etc., R. Co. v. Miliigan, 2 App. 578; City of 
Ft. Wayne v. Coombs, 107 Ind. 75; Louisville, etc., R. Co. v. Wright, 115 Ind. 378, 393. 

The safety of the streets can not be proven by showing that other persons passed 
over the same without injury, or that the street complained of was as good as the other 
streets of the city. Bauer v. City of Indianapolis, 99 Ind. 56; McCormick, etc., Co. v. 
Gray, 100 Ind. 285; Cleveland, etc., R. Co. v. Wynant, 114 Ind. 525. 

Evidence of subsequent repairs. — Evidence of repairs subsequent to the date of in- 
jury is not admissible to show antecedent negligence. Board, etc., v. Pearson, 129 Ind. 
456; Chicago, etc., R. Co. v. Lee, 17 App. 215; City of Jeffersonville v. McHenry, 
App. Ct., March 7, 1899; Terre Haute, etc., R. Co. v. Clem, 123 Ind. 15. 

Evidence of such repairs subsequent to the date of the injury is sometimes admissible 
for the purpose of tending to show that the party charged had notice of the defect. 
Hopkins v. Boyd, 18 App. 63; City of Jeffersonville v. McHenry, Ind. App. Ct., 
March 7, 1899. 

Evidence of subsequent repairs, when restricted by a proper instruction, is proper fo^ 
the purpose of showing a city's recognition of a defective walk as one w^hich the city 
was bound to repair. City of Lafayette v. Weaver, 92 Ind. 477; City of Jeffersonville 
V. McHenry, Ind. App. Q., March V, 1899. 

Evidence. — The introduction of many matters of record of the proceedings of a city 
council in an action for personal injuries against the city and a contractor for the con- 
struction of a water system, said proceedings relating in some manner to the construc- 
tion of the water- works plant in said city, and the introduction in evidence of the bond 



239 IMPROVEMENT OF STREETS. § 218 

given by the contracting company and assigned to the city, do not constitute reversible 
error and are harmless even though much of it may be immaterial. City of Alexandria 
V. Young, 20 App. 672. 

Evidence— Fact and opinion.— Where there was a hole in a sidewalk extending from 
the pavement down through a wall of a mill on the abutting lot, which was private 
property, and some years after the injury the mill was rebuilt by a private individual, 
at which time the hole in the wall was filled with stone and mortar and the hole in 
the pavement was filled with clay by said party, the city having nothing to do with the 
work, evidence of witnesses, who had known of the condition of the pavement and 
mill-wall prior to and subsequent to the rebuilding of the mill and the injury, and who 
had examined the pavement and wall a few days prior to the trial, as to the condition 
in which they found the wall and stating where and how the work of filling the hole 
had been done, was not open to the objection that the evidence was matter of opinion, 
for it was a statement of facts. City of Jeffersonville v. McHenry, Ind. App. Ct., March 
7, 1899. 

Expressions of pain. — Witnesses may be permitted to testify to expressions of pres- 
ent pain by the party injured. The interval of time between the injury and expression 
of pain will go to the weight of the evidence, but not to its admissibility, and evidence of 
expressions of present pain seven years after the injury may be admitted. City of 
Huntington v. Burke, 21 App. 655. 

Same— Evidence— Sufficiency of.— Evidence that plaintiff was injured by falling 
over a loose board in a sidewalk, which was tipped up by another person stepping 
thereon, and that she knew of the condition of the w^alk, and was looking for holes in 
the walk, is insuflicient to support a verdict in her favor. City of Huntingburgh v. First, 
15 App. 552. 

Neg-lig-ence- Question of fact for jury.— Whether an obstruction or defect in a street 
is such as it is negligence on the part of the municipality to suffer to exist is generally a 
question of fact for the jury. City of Michigan City v. Boeckhng, 122 Ind. 39; City of 
Lafayette v. Weaver, 92 Ind. 477. 

Evidence— Ordinance — Street commissioner. — In an action against a city for in- 
juries caused by defects or obstructions in a street, evidence may be given of an ordi- 
nance of a city prescribing the duty of its commissioner of streets. City of Indianapohs 
V. Gaston, 58 Ind. 224. 

Same — Guards — Lig-hts. — Where there is such a defect in a gutter-crossing of a city 
as to be dangerous to persons passing at night, it is the duty of such city to guard the 
same in some way, and the absence of gaslight from street lamps, or other lights, in 
such vicinity, may be considered in determining the question of negligence. City of 
Indianapohs v. Scott, 72 Ind. 196. 

Contributory ne§"lig"ence — Burden. — In an action against a municipal corporation 
for injuries sustained by the failure of the corporation to keep the streets in safe con- 
dition, the plaintiff must allege in his complaint and prove that the injury was incurred 
without his own negligence having contributed thereto. The burden is on him to show, 
not only the negligence of the corporation, but his own freedom from negligence con- 
tributing to the injury. Town of Salem v. Walker, 16 App. 687; City of Huntingburgh 
V. First, 15 App. 552. 

But see Acts 1899, p. 58, which provides that in all actions for damages brought on ac- 
count of the alleged negligence of any person, copartnership or corporation for causing 
personal injuries, or the death of any person, it shall not be necessary for the plaintiff 
to allege or prove the want of contributory negligence, but that contributory negligence 
shall be a matter of defense, and such defense may be proved under the answer of 
general denial, provided said act shall not affect pending litigation. 

Same. — If the municipality has neglected to keep its streets in a reasonably safe con- 
dition, a traveler thereon is not excused from the exercise of ordinary care for his own 



§ 218 CITIES. 240 

isafety. Town of Gosport v. Evans, 112 Ind. 133; Riest v. City of Goshen, 42 Ind. 339; 
President, etc., v. Dusouchett, 2 Ind. 586; Bruker v. Town of Covington, 69 Ind. 33; 
Town of Salem v. Walker, 16 App. 687 ; City of Huntingburgh v. First, 15 App. 552. 

Same. — If one has knowledge that a highway or sidewalk in a town or city is out of 
repair, or even dangerous, he is not for that reason bound to forego travel upon the 
same, but, in such case, the care to avoid injury must be in proportion to the danger 
the traveler may encounter by reason of the defect or obstruction. Town of Salem v. 
Walker, 16 App. 687; Town of Albion v. Hetrick 90 Ind. 545; Town of Gosport v. 
Evans, 112 Ind. 133 ; City of South Bend v. Hardy, 98 Ind. 577 ; City of Huntington v. 
Breen, 77 Ind. 29; City of Indianapolis v. Cook, 99 Ind. 10; Turnpike Co. v. Jackson, 
86 Ind. ill ; President, etc., v. Dusouchett, 2 Ind. 586; City of Huntingburgh v. First, 15 
App. 552; Town of Fowler v. Linquist, 138 Ind. 566; City of Richmond v. MuUiolland, 
116 Ind. 173; City of Columbus v. Strassner, 124 Ind. 482; City of Bedford v. Woody, 
Ind. App. Ct., May 18, 1899; City of Huntingburg v. First, Ind. App. Ct., March 10, 
1899. 

Same. — It is negligence for one, unless under compulsion, to cast himself upon a 
known peril from which a prudent person might reasonably anticipate injury ; and 
where there is danger, and the peril is known, whoever encounters it voluntarily and 
unnecessarily can not be regarded as exercising ordinary prudence, and, therefore, does 
so at his own risk. Morrison v. Board, etc., 116 Ind. 431 ; Railway Co. v. Pinchin, 112 
Ind. 592; Town of Gosport v. Evans, 112 Ind. 133; Town of Salem v. Walker, 16 App. 
687; Bruker v. Town of Covington, 69 Ind. 33; City of Indianapolis v. Cook, 99 Ind. 
10; Rogers v. City of Bloomington, Ind. App. Ct., Dec. 16, 1898. 

Same.— It is contributory negligence upon the part of a horseman, who, riding upon 
a street in a city or town, encounters an obstruction which frightens his horse, to there- 
after, voluntarily and without necessity so to do, to again ride his horse in proximity to 
such obstruction. Town of Salem v. Walker, 16 App. 687. 

Contributory neg^lig-ence— Knowledg^e of defect— Inference,— Where one is in- 
jured by being thrown from the wagon he was driving across a street railroad track be- 
cause of ruts in the street, the fact that he had knowledge of the existence of such ruts 
would not alone be conclusive that he had knowledge of the unsafe or dangerous con- 
dition of the street, or that he was guilty of contributory negligence in driving over the 
same. Citizens' Street R. Co. v. Sutton, 148 Ind. 169. 

Knowledg'e of defect— Effect.— Mere knowledge by the plaintiff that a w^ay is dan- 
gerous will not prevent a recovery for injury resulting from an attempt to use it, unless 
the danger was so great that a person of ordinary prudence would not voluntarily en- 
counter it. Nave v. Flack, 90 Ind. 205 ; City of Richmond v. Mulholland, 116 Ind. 173 ; 
Town of Poseyville V. Lewis, 126 Ind. 80; City of Elkhart v. Witman, 122 Ind. 538; 
Citizens' St. R. Co. v. Sutton, 148 Ind. 169. 

The fact that a person traveling upon a street or sidewalk has knowledge of the defect 
will not of itself deprive him of a right of action in case of injury, but such fact, with all 
the other facts bearing upon the question, is to be considered by the jury in determin- 
ing whether such person was guilty of contributory negligence. City of Frankfort v. 
Coleman, 19 App. 368; City of Columbus v. Strassner, 124 Ind. 482. 

Use of defective street. — Where a person knows of the dangerous condition of a 
street, and yet, in the night-time, when it is dark, proceeds to travel thereon when the 
exact location of the dangerous portion can not be ascertained, he does so at his own 
peril. City of Bloomington v. Rogers, 9 App. 230, 237; City of Indianapolis v. Cook, 
99 Ind. 10; Town of Gosport v. Evans, 112 Ind. 133; Bruker v. Town of Covington, 
69 Ind. 33. See City of Huntington v. Breen, 77 Ind. 29 ; Rogers v. City of Blooming- 
ton, App. Ct., Dec. 16, 1898. 

Ditch near sidewalk— Contributory neg-lig-ence.— Where the findings show that 
plaintiff knew of the ditch, its location and relation to the street and sidewalk ; that the 
sidewalk was in the course of construction, by having placed on the space intended for it 
crushed stone and cinders preparatory to laying the brick ; that the ditch was about two 



241 IMPROVEMENT OF STREETS. § 218 

feet from the sidewalk ; that the ditch was six feet deep, with a precipitous stone wall and 
a solid stone bottom ; that she knew it was a dangerous place ; that it was a dark night ; 
that she had just been looking into a house through a window where there was a light ; 
that the only precaution she took to avoid falling into the ditch was to feel with her 
feet and search with her eyes while she was walking ; that even though she searched 
with her eyes, she was unable to determine the exact location of the ditch, and that 
Tinder the circumstances she undertook to pass along and over the space intended for a 
sidewalk, without any light, and in so doing fell into the ditch, such facts clearly estab- 
lish contributory negligence on the part of the plaintiff. Rogers v. City of Blooming- 
ton, Ind. App. Ct., Dec. 16, 1898. 

Excayation — Circumstances — Evidence. — In an action for damages sustained by 
falling into a ditch in a street, while plaintiff was on her way home in the night-time, 
evidence touching the surroundings and the means of ingress and egress to and from 
her residence is admissible, as bearing on the question of due care. City of Blooming- 
ton V. Eogers, 13 App. 121. 

SideAvalks.— Cities are liable for damages caused by defective sidewalks, although 
such walks are constructed by the adjoining property owners. Higert v. City of Green- 
castle, 43 Ind. 574; City of Huntington v. Breen, 77 Ind. 29. The city may be liable 
though the sidewalk is beyond the line of the street. City of Huntington v. McClurg, 
Ind. App. Ct., April 26, 1899. 

It is the duty of cities to prevent anything over-hanging a sidewalk that renders 
the use of such w^alk dangerous. Grove v. City of Ft. Wayne, 45 Ind. 429. 

The power of a city over its streets and the right of the public to them extends up- 
ward indefinitely for the purpose of their preservation, safe-guard and enjoyment; and 
the duty of a city in this respect is commensurate with its power. Grove v. City of Ft. 
Wayne, 45 Ind. 429. 

Defective sidewalk — Loose board. — A city is liable for injuries sustained by one 
who is tripped up by a loose board in a sidewalk where the city had not exercised 
ordinary care to maintain the sidewalk in a reasonably safe condition for the use of 
pedestrians, and the defective condition of the sidewalk causing the injury would not 
have existed but for the want of such care upon the part of the city, and the pedestrian 
was injured while exercising ordinary care. City of Columbia City v. Langohr, 20 App. 
395. 

A city is not liable for damages to a person who receives an injury by slipping upon 
a loose brick which turns under the foot, where the brick is a part of an old sidewalk, 
and is on a level with and completely surrounded by other bricks composing the side- 
walk, there being no apparent defect, and the walk being even and in fair condi- 
tion, excepting natural wear from long usage. Bucher v. City of South Bend, 20 App. 
177. 

Sidewalk— Snow and ice— Personal injury— Liability.— The mere fact that snow 
falls on a sidewalk, melts, and subsequently freezes, making it slippery, does not ren- 
der the city liable for an injury caused by slipping and falling thereon. McQueen v. 
City of Elkhart, 14 App. 671. 

Grade of sidewalk— Neg'lig'ence— Burden of proof .—A city is not hable for an in- 
jury received upon one of its sidewalks merely because its officials adopt one grade in 
preference to another, or because sidewalks of a given standard are better, or more per- 
fect than that adopted. Plaintiff in an action for personal injuries on account of defec- 
tive grading of a sidewalk, or of the defective construction of a sidewalk, has the burden 
of proving that the walk was improperly graded or constructed. McQueen v. City of 
Elkhart, 14 App. 671. 

Coal vault — Neg'lig'ence — Notice. — It is not negligent or wrongful for a city to silently 
allow the owner of property abutting on a street to properly construct a coal vault un- 
der the sidewalk ; and the city is not chargeable with negligence where the occupant of 

CiT. AND To.— 16 



§ 218 CITIES. 242 

the premises using such vault leaves the opening of said vault in the sidewalk uncov- 
ered for a short time while engaged in putting coal into the vault, and where the city 
officials have not notice that it is uncovered. City of Lafayette v. Blood, 40 Ind. 62; 
City of Ft. Wayne v. DeWitt, 47 Ind. 391. 

'\^Tiere plaintiff passed over a sidewalk, that was out of repair, three or four times a 
week for several weeks prior to his injury, had actual knowledge that the sidewalk was 
old, the boards loose and walk dangerous, was walkhig over it in the dark with his 
hands in his pockets and could have gone home by some other route, and there was no 
evidence that he was actually trying to avoid anticipated danger, he is not free from 
contributory negligence and can not recover damages because of being tripped up by a 
loose board in the sidewalk. Town of Boswell v. Wakley, 149 Ind. 64. 

Where a traveler knows of the general condition of a sidewalk and that some boards 
are loose and dangerous, but does not know that the particular board over which he 
afterward trips was loose, he is held to know of the defect. Town of Boswell v. Wak- 
ley, 149 Ind. 64. 

Sidewalk— Pleading'— Notice— Evidence— Neg-lig-ence.— If a city permit a sidewalk 
to become out of repair so that a pedestrian, without knowledge or the means of ascer- 
taining its condition, be injured while using the same without fault on his part, it is 
hable therefor. Town of Salem v. Goller, 76 Ind. 291, 292 ; City of Washington v. Small, 
86 Ind. 462, 465; City of New Albany v. McCulloch, 127 Ind. 500, 502; Buscher v. City 
of Lafayette, 8 App. 590, 595; City of Huntington v. McClurg, App. Ct., April 26, 1899. 

In a suit against a city for an injury caused by a defective sidewalk, it is not necessary 
that the plaintiff aver his ignorance of the defect, and, if averred, it need not be proved. 
City of Lafayette v. Weaver, 92 Ind. 477, 478. 

In a suit against a city for personal injury caused by a defective sidewalk, the com- 
plaint alleged that the defendant did, willfully and knowingly, permit its sidewalk, de- 
scribing it, to become and remain rotten, decayed, defective and out of repair. It was 
sufficiently showm that the street was one which the city was bound to keep reasonably 
safe for ordinary travel. City of Lafayette v. Larson, 73 Ind. 367, 369; City of Colum- 
bus V. Strassner, 124 Ind. 482, 484. 

In an action against a city for damages for injuries caused by a defective sidewalk, 
an allegation that the city had exclusive authority and jurisdiction over its streets, alleys 
and sidewalks, and negligently permitted one of its sidewalks — the one on the west side 
of Washington street — to get out of repair, is sufficient to show that the sidewalk where 
the injury is alleged to have occurred was within the city and under its jurisdiction. 
City of Columbus v. Strassner, 124 Ind. 482, 484. 

Notice of obstruction— Evidence. — "WTiere there is no evidence that the town had 
notice of the alleged obstiiiction of the sidewalk, or that facts existed from which notice 
thereof may have been reasonably inferred, or that there were circumstances from 
which the alleged obstruction ought to have been known and remedied, a judgment for 
plaintiff will be reversed. Town of Rosedale v. Ferguson, 3 App. 596, 599. 

Condition, question of fact. — In a suit against a city for an injury caused by a defec- 
tive sidewalk, the question whether the walk w^as dangerous is one of fact for the jury, 
and if there be conflict in the evidence, the verdict will not be disturbed by the supreme 
court. City of Lafayette v. Weaver, 92 Ind. 477, 478. 

An answer to a complaint, pleaded with the general denial, which alleges that the 
plaintiff knew the defective condition of the sidewalk, but that, notwithstanding such 
knowledge, he voluntarily, and of his own free will, ventured to travel on the same, 
and assumed the risk of his journey thereon, may properly be stricken out, since it 
alleges only such matters as are admissible under the general denial. City of New Al- 
bany V. McCulloch, 127 Ind. 500, 503. 

Sidewalk— Lot-owner's liability.— A citizen can not be held hable for an injury re- 



243 IMPROVEMENT OF STREETS. § 218 

suiting from a defective sidewalk upon the ground that he is the owner of the adjoining 
lot and makes more use than others of a thing causing the injury, constructed and kept 
for pubhc convenience, to Avhich all have a common right, and over which no one citi- 
zen has specific control. City of Elkhart v. Wickwire, 87 Ind. 77, 82. 

Personal injury— Damag'es.— In a suit against a city to recover for personal injury 
received in consequence of an obstmction upon a sidewalk, the sum of |1,000 was not 
excessive damages where such injury confined the plaintiff to his room for sixteen 
weeks, requiring him to use crutches three months more, caused him great pain for a 
longer period, rendered entire recovery doubtful, and entailed considerable expense for 
medical aid and nursing. City of Evansville v. AYilter, 86 Ind. 414, 421. r^ee City of 
Bluffton V. McAfee, App. Ct., May 24, 1899. 

Obstruction of street, injury. — In an action against a municipal corporation, for 
personal injuries sustained by tripping upon a guy wire which had been erected by an 
electric light company, licensed to use the street, extending from the top of a pole, 
across the street, and attached to a tree, the complaint is sufficient, on demurrer, which 
proceeds upon the theory that the defendant had notice, when the wire was stretched 
across the street, that it was fastened to a decayed and unsafe tree outside and beyond 
the street (such tree having been blown down, and such wire suspended but a few 
inches above the sidewalk about an hour before the accident complained of), and that, 
by the exercise of reasonable diligence, appellant might have known of the continuance 
(about nine months) of such unsafe attachment up to the time of the accident, and 
alleging Avant of contributory negligence. City of Lafayette v. Ashby, 8 App. 214, 
217. 

Complaint to abate — Bad answer. — Complaint by an incorporated town to recover 
the amount of a judgment which it had been compelled to pay, alleging an unlawful 
excavation, wrongfully and without permission made by the defendant in a sidewalk, 
into which one H. fell and was injured; that H. sued the town and recovered the judg- 
ment ; that the defendant was notified of the suit and defended it. Answer, that the 
excavation was made for a stairway to the basement of a building of the defendant, 
such as was customarily made by others, v/ith the knowledge of the town ; that due 
-care was used to avoid injury ; that an unexpected caving of the earth occurred, of which 
the town had notice, but failed to inform the defendant, and the injury was the result 
of such caAdng, and could have been avoided by a trifling expense. The answer was 
insufficient, because it did not aver permission from the town to make the excavation, 
but oniy averred evidence tending to show permission. McNaughton v. City of Elk- 
hart, 85 Ind. 384, 387. 

Res judicata— Wrong'-doer notified.— In such case, where the town, upon being 
sued, notifies the wrong-doer thereof, and that it will look to him for indemnity, the 
judgment concludes him as to the facts thereby adjudicated. McNaughton v. City of 
Elkhart, 85 Ind. 384, 391. 

Sidewalk— Visible defect— Neglig-ence.— A city is not Hable to one who sustains an 
injury by reason of a defective sidewalk, if the latter could have avoided the injury by 
looking, and shows no excuse for failing to look. City of Plymouth v. Milner, 117 Ind. 
324, 326. 

A complaint against an incorporated town for an injury resulting from a defective 
sidewalk, which fails to aver notice to the corporation of the defect, or facts by reason 
of which the law will impute notice, or from which it may be reasonably inferred, is 
bad on demurrer. Town of Spiceland v. Alier, 98 Ind. 467, 469. 

Dang-erous sidewalk unprotected— Signals— Complaint.— Where, in an action 
against a city to recover damages for personal injuries, it was averred in the complaint 
that the sidewalk along a particular street was twelve feet in width ; that the city had 
constructed a portion of the walk over a ditch, in an alley, only three feet wide, leav- 
ing it without any protection at the sides, or any lights or danger signals, so tliat the 



§ 218 CITIES. 244 

plaintiff in passing along the sidewalk, without knowledge of the situation or condition 
of the walk at the alley, stepped off into the ditch, thereby sustaining the injuries com- 
plained of, without any fault on her part, the complaint stated a good cause of action 
against the city for negligence. City of Portland v. Taylor, 125 Ind. 522. 

Sidewalk obstructed— Complaint.— In an action against a town for personal injury 
occasioned by obstructions on a sidewalk, the complaint alleged that a certain railroad 
company, with full knowledge of the town, negligently obstructed a sidew^alk adjoining 
certain real estate controlled and owned by said railroad company in said town, by 
causing to be placed thereon a large number of rolls of barbed wire, obstructing and 
rendering passage over the sidewalk dangerous to travelers passing thereon. It was 
sufficiently alleged that the place where the wire lay was a public sidewalk, although 
the name of the street was not alleged. Town of Rosedale v. Ferguson, 3 App. 596, 
598. 

Bicycle. — A bicycle is a vehicle, and is entitled to the rights of the road, but has no 
lawful right to the use of the sidewalk. Its use upon a public sidewalk is unlawful, and 
its rider hable for an injury inflicted upon a footman, although the act be uninten- 
tional. Mercer v. Corbin, 117 Ind. 450; Holland v. Bartch, 120 Ind. 46. 

Crossing' made by citizen. — A municipal corporation is not exempted from its lia- 
bility for defects in a crossing by the mere fact that it was constructed by a private per- 
son. If such crossing is constructed in a public street, where the public pass on foot, 
and the same gets out of repair and becomes unsafe, and remains so for such a length 
of time that the proper authorities, in exercise of reasonable care and prudence, ought 
to have discovered the defect and repaired it, the corporation is liable for the negli- 
gence, without actual notice. City of Aurora v. Bitner, 100 Ind. 396, 400 ; Higert v. City 
of Greencastle, 43 Ind. 574; City of Huntington v. Breen, 77 Ind. 29; City of Indianap- 
olis V. Lawyer, 38 Ind. 348. 

Crossing", wlien dang^erous. — A street crossing, consisting of plank raised from two 
to two and one-half inches in height above the level of a sidewalk, is a dangerous ob- 
struction, and where the city negligently suffers such an obstruction to remain in one 
of its pubhc sidewalks and street crossings, for an unnecessary period of time, it is lia- 
ble to one who is injured while passing over the sidewalk and crossing, without notice or 
knowledge of the obstruction. Gllantz v. City of South Bend, 106 Ind. 305, 309; City of 
Michigan City v. Boeckling, 122 Ind. 39, 41. 

Gutter crossing's. — It is the duty of a city not only to make her gutter crossings safe 
in the first instance, but to use ordinary care to see that they are kept safe. City of In- 
dianapohs v. Scott, 72 Ind. 197. 

Gutter crossing* dangerous.— Where a city constructed an oval-shaped, iron gutter 
crossing 3x9 feet, in a public and much traveled street, the gutter crossing originally 
being perforated and creased, affording a secure foothold for passers-by, but by long 
use had become worn "smooth as a polished piece of wood, and very smooth, slick and 
slippery," so that no safe foothold was presented by it, except for a short space at each 
end, of the character of which crossing the city had knowledge for ninety days before an 
accident causing serious injury to a passer-by who was walking ''slowly and carefully" 
along, and slipped and fell upon the crossing, the dangerous condition of the crossing 
being the sole cause of the injury, the city was liable in damages to the injured party. 
Lyon V. City of Logansport, 9 App. 21, 27. 

Railroads — Culverts — Sewers. — If a city permit a railroad company to occupy and 
cross streets and alleys, and require it to construct culverts, and the city adopt them for 
its use, and they prove insufficient, or become out of repair, the city will be liable for 
injury resulting to adjoining property by reason of such insufficiency. While the city 
will not be liable for injury resulting from defective sewers constracted for the exclu- 
sive use of the railroad company, still she can not delegate her general power and adopt 
the work of the company as part of her general system without responsibility for de- 



-^5 IMPROVEMENT OF STRjfiETS. § 218 

fects in the work. City of Indianapolis v. Lawyer, 38 Ind. 348; State v. Board, etc, 80 
Ind. 478, 484; Lostutter v. City of Aurora, 126 Ind. 437; Stackhouse v. City of Lafay- 
ette, 26 Ind. 17. 

Reckless and careless driving". — Reckless and careless riding or driving upon a pub- 
lic street, whereby another, without fault, is injured, is actionable. Simons v. Gay nor, 
89 Ind. 165; Stringer v. Frost, 116 Ind. 477. 

Municipal ordinances regulating the speed of driving may be considered in determin- 
ing whether the defendant was guilty of recklessness in driving against the plaintiff. 
Simons v. Gaynor, 89 Ind. 165; Pennsylvania Co. v. Stegemeier, 118 Ind. 305. 

Liability of infant. — An infant who negligently, and without any contributory fault 
on the part of a pedestrian, rides down and injures the latter while crossing a public 
street, is liable in damages. Stringer v. Frost, 116 Ind. 477. 

Law of road— Use of street.— The statute which provides that any person who shall, 
when driving any vehicle, fail to pass to the right, when meeting another vehicle, etc, 
shall forfeit the sum of five dollars, etc., applies only to country roads. In cities and 
towns, in the absence of ordinances or a statute to the contrary, a person has the right 
to travel in and upon any part of the street, from curb to curb, so long as he does not 
interfere with the right of other travelers. City of Decatur v. Stoops, Ind. App. Ct., 
Jan. 10, 1899. 

Cattle at larg'e— Excavation in street.— It is not negligence in the owner of cattle 
to allow them to run at large in the streets of a town, where an ordinance thereof per- 
mits it, in which excavations are being made for the laying of gas pipes. One making 
an excavation in a public highway must keep it constantly guarded while it is 
dangerous. Noblesville, etc., Co. v. Teter, 1 App. 322; Silvers v. Nerdlinger, 30 
Ind. 53. 

Driving' cattle tliroug'li streets.— Persons driving cattle through the streets of cities 
or towns are bound to use the utmost diligence and care to avoid injuries to passers-by. 
Eichel V. Senhenn, 2 App. 208. 

Foot passeng'ers. — Persons about to cross a street on foot should use due care to avoid 
coming in contact with horsemen or vehicles ; but they are not guilty of negligence per 
se in crossing a street at a place other than the usual crossing. Stringer v. Frost, 116 
Ind. 477; Simons v. Graynor, 89 Ind. 165. 

Foot passengers have equal rights in streets with other persons, and one is not guilty 
of negligence who fails to anticipate, and take special precautions against injury by 
persons riding or driving at an unusual and dangerous rate of speed. Stringer v. Frost, 
116 Ind. 477. 

Footmen standing* in street, negiig'ence. — One who stands heedlessly, at night, in 
the carriage-way, on a public street, where it is known that horses and vehicles are 
liable to pass momentarily, without taking any precaution to avoid danger, from per- 
sons riding or driving on the street, is guilty of negligence, and it is not error to so in- 
struct the jury. Evans v. Adams Ex. Co., 122 Ind. 362. 

Collision in public streets. — When a collision occurs in a public street by the united 
and contemporaneous negligence of two persons, neither can recover from the otlier for 
a resulting injury. Evans v. Adams Ex. Co., 122 Ind. 362. 

Permitting" objects calculated to frig"hten horses to remain on street.— Towns and 
cities, in the absence of contributory negligence, are liable for injuries resulting from 
the fright of horses of ordinary gentleness, at objects naturally calculated to frighten 
them, and which the corporation has negligently placed, or permitted to be placed 
and to remain, upon the street. Town of Rushville v. Adams, 107 Ind. 475 ; City of 
Crawfordsville v. Smith, 79 Ind. 308; Cleveland, etc., R. Co. v. Wynant, 114 Ind. 525. 

If a person places in a public street or highway an object likely to cause animals to 
take fright, he will be liable to persons damaged who are without fault. Turner v. Bu- 
chanan, 82 Ind. 147. 



§ 218 • CITIES. 246 

Street coasting — Police officers.— A city, after having adopted an ordinance pro- 
hibiting upon its streets sports tending to produce bodily injury, was not liable for a 
collision upon a street whereby a traveler was injured, as the result of coasting for 
sport, though the sport was carried on by crowds publicly, in the presence of its officers 
and police, to the obvious danger of persons using the street. Faulkner v. City of Au- 
rora, 8.5 Ind. 130, 134; City of Lafayette v. Timberlake, 88 Ind. 330, 331; City of La- 
fayette V. Eose, 88 Ind. 471. 

Fireman — Bisk assumed. — A fireman, in assuming the duties of his place, takes upon 
himself no risk arising out of negligence on the part of those in charge of the streets. 
Turner V. City of Indianapolis, 96 Ind. 51, 56. 

Nuisance — Permanent obstructions. — A municipal corporation is guilty of maintain- 
ing a public nuisance if it places a permanent obstruction in a public street. A perma- 
nent structure, materially encroaching upon a public street in a thickly inhabited part 
of a large city, is a nuisance, per se. State v. Berdetta, 73 Ind. 185 ; Pettis v. Johnson, 
56 Ind. 139; State v. Louisville, etc., E. Co., 86 Ind. 114; Bybee v. State, 94 Ind. 443; 
ElHott Eoads and Streets-, p. 476. 

Same— Structures overhanging" sidewalk.— The cornice of a building which pro- 
jects over a sidewalk in a city, and wdiichis being constructed in such a manner as to be 
dangerous to persons using the sidewalk, is a nuisance. The city has power to abate the 
same. Grove v. City of Ft. Wayne, 45 Ind. 429. 

What will constitute a nuisance. — An unauthorized and illegal obstruction of the 
public ways of a town or city is a pubhc nuisance. State v. Berdetta, 73 Ind. 185, 189; 
State V. Louisville, etc., E. Co., 86 Ind. 114, 116; State v. Baltimore, etc., E. Co., 120 
Ind. 298, 299; Zimmerman v. State, 4 App. 583, 586. 

No rig'ht by prescription. — A right to maintain a public nuisance can not be acquired 
by prescription. Sims v. City of Frankfort, 79 Ind. 446, 451^ State v. Louisville, etc., 
E. Co., 86 Ind. 114, 116. 

A railroad in the streets of a city is not of itself a nuisance, but an improper and un- 
reasonable exercise of a right to use a street by a railroad company may become a 
nuisance. State v. Louisville, etc., E. Co., 86 Ind. 114, 116. 

Nuisance. — A municipal corporation is hable for torts the same as an individual in 
certain classes of cases, among v/hich is included nuisances. For a nuisance maintained 
upon its property the same liability attaches against a city as to an individual. City of 
New Albany v. Slider, Ind. App. Ct., Jan. 10, 1899; Haag v. Board, etc., 60 Ind. 
511. 

Nuisance— Street dump— Complaint.— A complaint which alleges that plaintiff is the 
owner, and with his family is in possession of a house and lot in a city as a residence ; 
that said city has caused to be deposited large quantities of garbage, rubbish and filth, 
gathered from its public ways, near to the premises of plaintiff, thereby creating a nui- 
sance consisting of a huge pile of decomposed and decaying vegetable and animal mat- 
ter, from which noxious vapors, disagreeable and unhealthy odors are generated and 
emitted, w^hereby the air in and about said premises of plaintiff is impregnated, injur- 
ing plaintiff's health and causing him and his family to become diseased and sick, de- 
stroying the comfortable enjoyment of said premises, and greatly depreciating the value 
thereof to plaintiff's damage, presents a good cause of action for damages against the 
city. City of New Albany v. Slider, Ind. App. Ct., Jan. 10, 1899; City of New Albany 
V. Armstrong, Ind. App. Ct., March 8, 1899. 

In such case where the jury finds in answer to interrogatories, and the undis- 
puted evidence is, that there is no permanent injury to the property resulting from the 
nuisance, but that during the continuance of the nuisance the rental value of the prop- 
erty was depreciated, but there is neither finding nor evidence as to amount of the 
rental value, a verdict in favor of the plaintiff can not be upheld. City of New Albany 
v. Armstrong, Ind. App. Ct., March 8, 1899. 

Railroad, use of streets. — Indictment against a railroad company for a nuisance by 



247 IMPROVEMENT OF STREETS. § 218 

obstnicting the streets and public square of a town by its tracks, switches and buildings, 
and by the manner of their use. Special plea, that the defendant had lawfully acqmred 
the right to use the locus in quo for the purposes of a railroad, and that in the use of its 
tracks, switches and buildings it created only such temporary obstructions as resulted 
Irom the reasonable and necessary transaction of its railroad business. The plea was 
good on demurrer. State v. Louisville, etc., R. Co., 86 Ind. 114, 117. 

Eig-ht of property owner in street— Injunction— Indictment.— The permanent ob- 
struction of a street is such an unlawful act as injures the property owners of the street, 
who have a right, as an essential incident to the enjoyment of their property, to the use 
of the street, in its full width, free from all obstructions of a permanent character ; and 
this right may be vindicated either by injunction or indictment, and its violation estab- 
lished by evidence of a permanent encroachment upon the street. State v. Berdetta, 
73 Ind. 185. 

Obstruction of hig-liway— Damag-es to abutting- owner.~The owner of real estate 
abutting on a public highway can not maintain an action for the obstruction of such 
highway, unless some special injury, one not common to all who use the highway, has 
been sustained, where such abutting owner is not the owner in fee simple of any part 
of the highway. Pittsburgh, etc., E. Co. v. Noftsger, 148 Ind. 101. 

Nuisance — Successive actions. — The improvement of a street by a municipal corpo- 
ration is not a nuisance, though done in a negligent and unskillful manner ; and hence 
the rule that the continuance of a nuisance will supply ground for successive actions 
has no application. City of North Vernon v. Voegler, 103 Ind. 314, 318. 

Well and pump for public use.— A well originally dug in a street by a lot-owner 
may be taken charge of by the corporate authorities and made fit for convenient public 
use. A municipal corporation is not guilty of maintaining a nuisance where it does no 
more than construct a platform around the mouth of a well dug in the street by an 
abutting property -owner, and causes a pump to be placed in it for the use and con- 
venience of the public. Lostutter v. City of Aurora, 126 Ind. 436, 439. 

Well, hydrant, fountain and the like.— It is immaterial whether a well, hydrant, 
fountain or the like, was dug, or erected, by a municipal corporation as a part of a gen- 
eral plan of improvement, for a thing of that kind, promotive, as it presumptively is, of 
public convenience, may be adopted by the municipality and maintained for public use. 
Lostutter v. City of Aurora, 126 Ind. 436, 439. 

Hitcliing' post. — A hitching post properly located is not an unlawful obstruction in a 
street. The proper place for the post is just at the edge of the sidewalk and within the 
space where the curb should be. Whether it is so placed as to be an unreasonable 
obstruction in the street is a question of fact in each case. Weinstein v. City of Terre 
Haute, 147 Ind. 556. 

Same— Contributory neg-lig'ence.— Where a hitching post is placed in a street, and 
there is nothing to prevent one driving upon the street from seeing it, and no circum- 
stance existing that excuses him from looking, and there is ample room to pass upon 
the street without hitting the post, one driving against it when he is not looking to see 
where he is driving, can not be held to be free from negligence. AYeinstein v. City of 
Terre Haute, 147 Ind. 556. 

Mandamus— Obstruction— Pleading'.— A complaint in an action to compel a city by 
m.andamus to remove an obstruction from an alley placed therein by a railroad com- 
pany, with the consent of the city, must, in order to be sufficient, make it affirmatively 
to appear that an unlawful use is made of the alley. State v. City of New Albany, 127 
Ind. 221, 222. 

Action to abate— Evidence competent.— In an action for the abatement of a nuis- 
ance, by the removal of a railroad track, it is competent to prove that the plaintiff con- 
sented to the occupancy of the street, and assisted in making the till upon which the 
track was laid. Burkam v. Ohio, etc., R. Co., 122 Ind. 344, 345. 



§ 218 CITIES. 248 

Building' material in street— Temporary obstructions— Permit— The right to place 
building material in the street exists only in cases of necessity and after the taking of 
due precautions not to injure any person lawfully using the street. Neither the person 
erecting the building, nor the city itself, can escape liabihty simply by the issuance of 
a permit to place building materials upon the street. Senhenn v. City of Evansville, 

140 Ind. 675; City of Indianaplis v. Doherty, 71 Ind. 5. 

Same. — A city may permit a temporary obstruction of portions of a street by building 
materials when it may be necessary to do so in the erection of buildings ; but the city 
must see that proper care is used to prevent injuries, or it will be liable for damages re- 
sulting from such obstructions. Wood v. Mears, 12 Ind. 515 ; City of Indianapolis v. 
Dohei-ty, 71 Ind. 5. 

The privilege given by a city to deposit building material in a street may be revoked 
by the council at any time, and the material caused to be removed, and a nuisance cre- 
ated thereby abated. City of Indianapohs v. Miller, 27 Ind. 394. 

The power of the common council to authorize the obstruction of streets and alleys 
with building materials is legislative in its character, and can only be exercised by an 
ordinance passed under the formalities required by law. City of Indianapohs v. Miller, 
27 Ind. 394. 

A building permit which requires the party to whom it is issued to protect the public 
from the dangers of the obstructions authorized by the permit, does not relieve the city 
of the duty of exercising such reasonable diligence as the circumstances require to pre- 
vent the street from being occupied in such way as to endanger passers-by in their use 
of it in all proper ways. Cleveland v. King, 132 V. S. 295. 

Bridg'es — Duties — Liabilities.— It is the duty of cities to keep bridges and crossing 
places of streams within the city in good repair, no matter by whom such bridges are 
constructed. A bridge on a street, and necessary to the legitimate use of the street, is a 
part of the street itself, and the city is as much bound to keep it in a reasonably safe 
condition for use as any other part of the street. City of Goshen v. Myers, 119 Ind. 
196; Trout v. City of Elkhart, 12 App. 343; City of New Albany v. Iron, etc., Co., 

141 Ind. 500; Board, etc., v. City of Washington, 141 Ind. 187; City of Wabash v. Car- 
ver, 129 Ind. 552; City of Logansport v. Justice, 74 Ind. 379; Lowrey v. City of Delphi, 
55 Ind. 250; Board, etc., v. Washington Township, 121 Ind. 379; Spicer v. Board, etc., 
126 Ind. 369; Town of Boswell v. Wakley, 149 Ind. 64; Elhott Roads and Streets, pp. 
44, 45; 2 Beach Pub. Corp., § 1475; 2 Dillon Munic. Corp., § 728. 

Municipalities are liable for negligence of officers in construction and repair of 
bridges, culverts, etc., even if counties are not. Town of Boswell v. Wakley, 149 Ind. 
64; Board, etc., v. Bonebrake, 146 Ind. 311; Bonebrake v. Board, etc., 141 Ind. 62; 
Board, etc., v. Allman, 142 Ind. 573. See Elliott Roads and Streets, pp. 40, 41. 

Negligence — Notice. — The rule of liability as to bridges is the same as to streets. 
Actual or constructive notice that the bridge is out of repair wdll render the city hable- 
for damages to one who suffers injury without fault. Elliott Roads and Streets, p. 50. 

County bridg"e— Acceptance by city.— A bridge constitutes a part of the highway 
apon which it is situate, and a city, by taking charge of and improving a highway, accepts 
and becomes charged with the maintenance of a bridge constracted thereon by the 
county. City of Goshen v. Meyers, 119 Ind. 196; Elliott Roads and Streets, p. 46; 2 
Beach Pub. Corp., §1475. 

Bridges in cities and towns.— All bridges, the estimated cost of which shall exceed 
five hundred dollars, to be built within the corporate 'limits of any city or town within 
this state, shall be built by the board of county commissioners in the same manner and 
paid for out of the same funds that other bridges without such corporate limits of such 
town or city are by law built and paid for. R. S. 1894, § 3283. 

Bridg'es in cities and towns— Who may build.— While the act of 1885 (R. S. 1894, 
§ 3283), imposes the duty of constructing bridges in towns and cities in certain cases 



249 IMPROVEMENT OF STREETS. § 218 

upon the board of commissioners, still this act does not withdraw all power from towns 
and cities to build bridges, in such cases, when they deem it proper to do so. City of 
New Albany V. Iron, etc., Co., 141 Ind. 500. 

Same — City— Contract ultra vires— Estoppel.— Where a city, without taking any 
steps to have the county commissioners build a bridge, procured a bridge to be built, 
and the contractor entered into the contract and constructed the bridge in good faith, 
the city can not set up in defense of the payment of the price therefor that its action 
in executing the contract and procuring the construction of the bridge was ultra vires. 
City of New Albany v. Iron, etc., Co., 141 Ind. 500. 

Same— County commissioners— Mandamus.— The said act of 1885 (R. S. 1894, § 3283), 
authorizing county commissioners to build bridges within the limits of towns and cities, 
when the estimated cost shall exceed |500, does not confer power upon cities by man- 
date or otherwise to force the county board to build a bridge at any point deemed desir- 
able or convenient by the city government. That must be left to the sound discretion 
of the commissioners, except in cases of extraordinary public necessity. And even if 
a public necessity should be shown for the bridge, it is the judgment of the board and 
not that of the city authorities which is to determine what kind of a bridge shall be 
built. Plans and specifications prepared and approved by the city can have no control 
over the action of the board. Board, etc., v. City of Washington, 141 Ind. 187. 

Same— Duty of city to repair— Control.— Said act of 1885, which makes it the duty 
of boards of county commissioners to build all bridges within the corporate limits of any 
city or town within the state, the estimated cost of which exceeds |500, does not pur- 
port to in any other manner interfere with the absolute control of the city over the 
bridges, nor does it relieve cities from the duty of keeping them in repair. City of Wa- 
bash V. Carver, 129 Ind. 552. 

Crossing- bridge with a traction eng-ine— Neg-lig-ence.— In an action by an admin- 
istrator for the death of his decedent, caused by a defective bridge, the general aver- 
ment that such decedent was without fault is not overcome by specific averments show- 
ing that he attempted to cross the said bridge with a traction steam engine with water 
tank and threshing machine attached. City of Wabash v. Carver, 129 Ind. 552. 

Defective condition of bridg-e— Presumption of notice,— Notice to a city of the de- 
fective condition of a bridge therein will be presumed from the continuation of such 
defect a ^ifiicient length of time for the ofiicers of such city to have had an opportunity 
to learn of such defect. City of Logansport v. Justice, 74 Ind. 378. 

AY abash and Erie canal — Bridge.— A city is bound to keep in repair a bridge across 
a canal extending through the city, when a bridge is a part of the highway Avithin the 
city limits. Lowrey, etc., v. City of Delphi, 55 Ind. 250; Board, etc., v. Ft. Wayne, 
etc., Co., 17 App. 36. See ElHott Roads and Streets, pp. 44, 45 ; and Common Council v. 
McClure, 2 Ind. 147. 

But it is the duty of the successors of the state in the ownership of the canal to con- 
struct and maintain state and county road bridges over the canal. Board, etc., v. Ft. 
Wayne, etc., Co., 17 App. 36. 

Bridge outside but adjoining town.— A bridge outside the corporate hmits, con- 
nected with a free gravel road and constructed by the county, does not, by the fact that 
it leads up to and joins a street at the corporate line of the lown, become a town bridge. 
The town is excluded from the control of a bridge so situated, the right of control being 
vested in the county, and the town in such case is not chai-geable with the duty of 
maintaining the bridge. Board, etc., v. Washington Tp., 121 Ind. 379. 

City's neg-lig-ence— Contributory negdigence.— The negligence of a city in not re- 
pairing a bridge will not relieve one about to cross a bridge from using due care. A 
person must use due care in driving upon a bridge, as well as in driving after he is upon 
the bridge. Riest v. City of Goshen, 42 Ind. 339. 

Defective bridge— Assumed risk— Recovery.— If one knows of a danger (a defective 
bridge), and yet voluntarily encountei-s it, when, on accoupt of darkness or other hin- 



§ 218 CITIES. 250 

dering causes, he knows he can not see and avoid it, he takes the risk upon himself, 
and, if injured, can not recover damages therefor. Trout v. City of Elkhart, 12 App. 
343; Eiest v. City of Elkhart, 42 Ind. 343. 

Decay of timbers — Notice. — A city is chargeable with knowledge of the natural ten- 
dency of timber to decay, and it is its duty to use ordinary care to detect and guard 
against the same. City of Indianapohs v. Scott, 72 Ind. 196. 

One who does not know of a defect in a bridge is not guilty of negligence in passing 
over it because he has no business requiring him to do so. Board, etc., v. Bonebrake, 
146 Ind. 311. 

Same — Complaint. — "UTiere the complaint in an action against a city alleged that a 
certain bridge in said city was out of repair, and the planking loose, etc., and that after 
the plaintiff had driven his horses upon the bridge with a loaded wagon, and was using 
due and reasonable care on his part to draw forward said load, the horses were injured 
through the defects in the bridge ; the complaint was bad on demurrer, because its alle- 
gations did not show that the plaintiff used due care in driving upon the bridge, or that 
he was ignorant of the condition of the bridge, and because there was no general aver- 
ment that the injury occurred without his fault. Eiest v. City of Goshen, 42 
Ind. 339. 

Dang^erous excavations — Notice. — Where a city, while constructing a bridge, made 
an excavation in the bed of a shallow stream where it was crossed by a street, and con- 
structed a levee from the bank to the pit, and, knowing that the children of persons 
residing near were accustomed to play in the vicinity, left it, in the absence of work- 
men, without safeguards of any kind, by reason of which a child five years old, while 
at play, without any fault upon the part of its parents, fell into the pit and was drowned, 
it was liable in an action for damages. City of Indianapolis v. Emmelman, 108 Ind. 
530, 535. 

Safety of stream prior to excavation— Evidence.— TMiere, on the trial of the action, 
the mother testified to the general character of the stream and to its comparative safety 
for children before the excavation was made therein, further testimony that she had 
never, before the death of her child, heard of any one being drowned in the stream, is 
admissible. City of Indianapohs y. Emmelman, 108 Ind. 530. 

Bridg'e at state line — Purchase by city. — That any city of this or an adjoining state 
is hereby authorized to purchase the shares of stock in any bridge company or corpora- 
tion owning a bridge across any stream forming the boundary line between this and an 
adjoining state, where either terminus of such bridge is within or adjoining such city ; 
and all purchases of such shares of stock heretofore made by any such city are hereby 
confirmed and made legal ; and in case any city shall have heretofore purchased four- 
fifths of all the shares in any such bridge company or corporation, can not agree with 
remaining owners as to the price to be paid therefor, or can not, for any cause, obtain 
from such owners a valid title thereto, such city may condemn and appropriate such 
shares for public use, and all the assessments therefor shall be made by the city com- 
missioners of such city. And upon such purchase of all the shares of stock as afore- 
said, or upon condemnation and appropriation as aforesaid, the title to such bridge and 
the real and personal property of such company or corporation shall vest in such city, 
and such bridge and the real and personal property aforesaid shall be the public prop- 
erty of such city, and shall not be subject to taxation while owned by any such city ; 
and such bridge shall be a public highway, free to all persons and vehicles, subject to 
such rules and regulations as may be passed by such city for the good government and 
protection and use of the same, and such fines for violation or neglect of any of the 
rules and regulations not exceeding SlOO, as the city may deem proper. R. S. 1894, 
§ 4671. 



251 IMPROVEMENT OF STREETS. § 218 

Special verdict.— Insufficiency of. — In an action for tort, for failure of the city to 
keep a certain one of its streets in reasonably safe condition for travel, a special verdict 
is not sufficient to entitle plaintiff to recover damages unless it show the injury to have 
been caused by some negligent act of the defendant, and without any contributory 
negligence of the plaintiff. A special verdict is not to be scrutinized unreasonably, 
but is to be construed reasonably and fairly, yet it must, without aid from intendment 
or inference other than those necessarily following, contain within itself all those facts 
e^ential to establish the case before judgment can be rendered upon it in favor of him 
on whom rests the burden of proof. City of Elwood v. Carpenter, 12 App. 459; Lyon 
v. City of Logansport, 9 App. 21; Becknell v. Hosier, 10 App. 5; Branson v. Stude- 
baker, 133 Ind. 147. 

Where the facts are specially found, the plaintiff can not recover in an action for tort, 
unless the fact of freedom from contributory negligence is expressly or inferentially 
found. Trout v. City of Elkhart, 12 App. 343. 

"Where, in an action for damages caused by a defective sidewalk, the plaintiff admits 
that she passed over the same place about a month before she was injured, and that she 
then saw the hole which afterward caused her injury, and knew at the time of the acci- 
dent that the hole was there, there should be, in order to entitle her to recover, some- 
thing more in the special verdict descriptive of her care and conduct than the mere fact 
that "she was walking slowly," City of Bluffton v. McAfee, 12 App. 490. 

Same — Inferential fact— When not warranted. — Under the circumstances of the 
case, as stated in previous note, the inferential fact that she "was passing along and over 
said place on said sidewalk and crossing with due care and caution," having no basis in 
fact except that "she was w^alking slowly," is not sufficient. City of Bluffton v. Mc- 
Afee, 12 App. 490. 

Same — Contributory neglig'ence. — A finding that plaintiff, who sues for personal in- 
juries caused by a defective sidewalk, "walked with ordinary care, and at her ordinary 
gait," is insufficient to show that she was free from contributory negligence. McQueen 
V. City of Elkhart, 14 App. 671. 

Special verdict— Contributory neg'lig'ence. — Where in a suit for damages against a 
city for personal injuries the special verdict of the jury contains no finding that plaintiff's 
decedent was free from contributory negligence, but contains a finding that the manner 
in which he was driving his horse at the time of the accident did not contribute to his 
injury, and the finding contains facts from which freedom from contributory negligence 
can be found, the judgment for defendant on the verdict is error. Ballard v. Citizens', 
etc., R. Co., 18 App. 522. 

Special finding's— General verdict.— Where it is found by answers to interrogatories 
that the city had no notice or knowledge of the defect in the sidewalk and the jury re- 
turns a general verdict in favor of the plaintiff there is not such irreconcilable conflict 
as to entitle the defendant to judgment on the interrogatories. City of Huntington v. 
Burke, 21 App. 655. 

Contributory neg-lig^ence a g-ood defense.— In an action for injuries caused by a de- 
fective street, the facts found must show affirmatively that plaintiff was free from con- 
tributory negligence, to entitle her to judgment. Trout v. City of Elkhart, 12 App. 344. 

But see Act of 1899, which provides that it shall not be necessary for the plaintiff to 
allege or prove the want of contributory negligence, but that contributory negligence 
shall be a matter of defense. Acts 1899, pp. 58, 59. 

Defective sidewalk— Contributory neglig-ence— Evidence.- Evidence that there 
was an electric arc lamp in a street 150 feet distant on each side, from the place of an 
accident to plaintiff on a defective sidewalk, and that the only obstruction to light was 
a row^ of deciduous trees at the outer edge of the sidewalk, is insufiicient to require a 
finding that the place was sufficiently lighted to enable plaintiff to see the condition of 
the walk. City of Ft. Wayne v. Durnell, 13 App. 669. 



§ 218 CITIES. 252 

Contributory neg-lig-ence— Special Yerdict— Insufficiency.— Where the jury find, in 
an action for injuries sustained by falhng into a ditch in a street, that the plaintiff was 
walking slowly and carefully when she was injured ; that she knew that the ditch was 
in the street ; that the night was dark ; that she had reasonably good eye-sight ; but 
there is no finding that she was using her sense of sight, or that she had the ditch in 
mind at the time, nor that she was looking out for the ditch or paying any attention to 
where she was going, nor is the inferential fact found that she Avas, under the circum- 
stances, using due care and caution at the time she was injured, the court can not ad- 
judge, as a matter of law, that plaintiff was entirely free from contributory negligence. 
City of Bloomington v. Rogers, 13 App. 121. 

When two inferences maj be easily drawn from the facts found relative to contribut- 
ory negligence, then the ultimate inference of contributory negligence or freedom from 
such neghgence is a question of fact for the jury. City of Bloomington v. Rogers, 13 
App. 121. 

Measure of damag-es— Loss of business— Evidence.— In an action by a physician 
against a city, to recover damages for a personal injury received on account of a defective 
bridge, proof of his professional earnings before and after the injury is admissible in 
evidence under a special allegation of damages on account of loss of business, not as a 
basis or measure of damages, but as aiding the jury to estimate the compensation to be 
awarded. City of Logansport v. Justice, 74 Ind. 378 ; Carthage Turnpike Co. v. An- 
drews, 102 Ind. 138; City of Indianapohs v. Gaston, 58 Ind. 224; City of Terre Haute v. 
Hudnut, 112 Ind. 542, 556. 

Remedy over, when allowed. — If a municipal corporation be held liable for damages 
sustained in consequence of the unsafe condition of its streets or sidewalks, it has a 
remedy over against the person by whose act or conduct the street or sidewalk was 
rendered unsafe, unless the corporation was a wrong-doer as between itself and the 
author of the nuisance. Catterlin v. City of Frankfort, 79 Ind. 547, 548 ; McNaughton 
V. City of Elkhart, 85 Ind. 384, 391 ; City of Elkhart v. Wickwire, 87 Ind. 77, 80; Town 
of Centerville v. Woods, 57 Ind. 192; 2 Dillon Munic. Corp., 4th ed., §§ 1035, 1036; El- 
liott Roads and Streets, p. 540. 

If a person wrongfully obstructs or renders a street defective, such person will be liable 
to the municipal corporation for the expense of removing the obstruction or the repair 
of the street. Town of Centerville v. Woods, 57 Ind. 192. 

Notice to defend — Effect. — Where the person who wrongfully or negligently causes 
a public street to be made unsafe for travel is notified of an action against the munici- 
pal corporation, instituted by one who has suffered injury because of such wrongful and 
neghgent act, the judgment will be conclusive against him as to the questions adjudi- 
cated in that action. McNaughton v. City of Elkhart, 85 Ind. 384, 391; City of Elk 
hart V. Wickwire, 87 Ind. 77, 80; Midland R. Co. v. Wilcox, 122 Ind. 84, 98. 

Defendant, when not estopped. — In such a case, the defendant is not estopped by 
the judgment against the corporation from showing that he was under no obligation to 
keep the street in safe condition, and that it was not through his fault that the accident 
happened. Catterlin v. City of Frankfort, 79 Ind. 547, 549. 

For facts stated upon which defendant was held not liable on action over by the city, 
see City of Elkhart v. Wickwire, 87 Ind. 77. 

Pleading" — Contributory neg'lig'ence. — In an action by a city corporation against the 
author of a nuisance, if the complaint does not show that the defendant had notice of 
the action against the corporation, it must allege that the injured person was free from 
negligence contributing to his injury. Catterlin v. City of Frankfort, 79 Ind. 547, 
549. 

Juror — Tax-payer incompetent.— In an action against a city for damages resulting 
from an injury caused by a defective street or sidewalk, the fact that a juror is a resi- 



253 IMPROVEMENT OF STREETS. § 218 

dent tax-payer of a city is cause for challenge. City of Goshen v. England, 119 Ind. 
368 ; Town of Albion v. Hetrick, 90 Ind. 545 ; Hearn v. City of Greensburg, 51 Ind. 119; 
Board, etc., v. Loeb, 68 Ind. 29, 33. 



Im'provement of Streets — Fixing and Changing Grade. 

Improvemeuts— Jurisdiction— Discretionary power— Control of.— The municipal 
authorities are invested with the pov/er of determining when improvements are necessai^y , 
and the courts can not control'this discretionary power by injunction. The common 
councils have exclusive original jurisdiction. City of Kokomo v. Mahan, 100 Ind. 242, 
244; Leeds v. City of Eichmond, 102 Ind. 372, 377; Town of Sullivan v. Philhps, 110 
Ind. 320, 321; Weaver v. Templin, 113 Ind. 298, 299; Bass v. City of Ft. Wayne, 121 
Ind. 389, 392; Mayor, etc., v. Roberts, 34 Ind. 471; Braden v. McNutt, 114 Ind. 214; 
Tufts V. State, 119 Ind. 232; Jackson v. Smith, 120 Ind. 520; Stein v. City of Lafayette, 
6 App. 414; Elliott Roads and Streets, p. 338; 1 Dillon Munic. Corp., 4th ed., §§ 94, 95, 
112, 379, 475; 2 Dillon Munic. Corp., 4th ed., §§ 832, 857, 934, 950. 

Continuing" authority to improve. — The authority to improve streets is a continuing 
one, and the corporate authorities may make a second or subsequent improvement, and 
collect the expense thereof from the adjoining lot-owners. City of Kokomo v. Mahan 
100 Ind. 242, 244; Platter v. Board, etc., 103 Ind. 360, 370; Gavin v. Board, etc., 104 
Ind. 201, 204; Macy v. City of IndianapoUs, 17 Ind. 267. 

The authorities of towns and cities have ample power to lay out, open, grade, regrade, 
level and pave or gravel streets and alleys, and to establish drains and sewers, culverts 
and embankments, whenever they are necessary for the improvement of such streets 
and alleys. City of Delphi v. Evans, 36 Ind. 90. 

Jurisdiction — Irreg'ularities. — Where the whole subject-matter of local improvement, 
and the assessments to be made in aid thereof, is conferred upon municipal corpora- 
tions having charge of, and exclusive original jurisdiction over, such improvement, as 
in this state, the proceedings of such a corporation will not be held void where there has 
been an attempt to comply with a statutory requirement, though such attempt does not 
amount to a strict compliance with the statute, if the corporation, in addition to its ju- 
risdiction over the subject-matter, acquires jurisdiction over the persons to be affected. 
Ricketts v. Spraker, 77 Ind. 371, 376; Argo v. Barthand, 80 Ind. 63, 66; Strieb v. Cox, 
111 Ind. 299, 304; Ross v. Stackhouse, 114 Ind. 200, 204 ; Prezinger v. Harness, 114 Ind. 
491, 497; City of Elkhart v. Wickwire, 121 Ind. 331, 337; Barber, etc., Co. v. Edgerton, 
125 Ind. 455,^463; Jackson v. Smith, 120 Ind. 520. See Willard v. Albertson, App. Ct., 
No. 2785, May 24, 1899. 

Street within city — Presumption— Proof .—Where an improvement has been made 
and property benefited, the property owner, seeking afterwards to show that the way 
improved did not belong to the city, must show that it was not acquired by condemna- 
tion, dedication, purchase or prescription. Jackson v. Smith, 120 Ind. 520. See Lewis 
V. Albertson, App. Ct., May 24, 1899. 

Statute, when strictly construed. — A city or town can not compel abutting land- 
owners to pay for street improvements unless empowered so to do by statute ; and when 
so empowered, the statute will be strictly construed. Town of Marion v. Skillman, 127 
Ind. 130, 140. 

Statute, when liberally construed. — The power to make street improvements, to be 
paid for out of the city or town treasury, is liberally construed ; and it is the exercise of 
a corporate function that is implied from the general words of the act of incorporation. 
Town of Marion v. Skillman, 127 Ind. 130, 140. 

Estoppel. — A property owner can not quietly permit money to be expended on work 
which benefits his land, under a contract with the city, and then deny the power of the 
city to make the contract. Unless the proceedings under which a street improvement 
is being made are totally void, a property owner who stands by, and, without objection. 



§218 



CITIES. 



254 



receives the benefit of the work, is estopped thereafter to question the legahty of the 
proceedings. New Albany, etc., Co. v. Crumbo, 10 App. 360; City of Logansport v. 
Uhl, 99 Ind. 531; City of Lafayette v. Fowler, 34 Ind. 140; City of Evansville v. 
Pfisterer, 34 Ind. 36 ; McCoy v. Able, 131 Ind. 417 ; Taber v. Ferguson, 109 Ind. 227 ; 
Eoss V. Stac^:ihouse, 114 Ind. 200 ; Jenkins v. Stetler, 118 Ind. 275 ; Palmer v. Stumph, 
29 Ind. 329; Powers v. Town of New Haven, 120 Ind. 185; Lewis v. Albertson, App. 
Ct., May 24, 1899; Willard v. Albertson, App. Ct., No. 2720, May 24, 1899; Elliott 
Eoads and Streets, pp. 419, 420. 

A request by. a property owner for action by council on a contract is an affirmance of 
the contract. Johnson v. Allen, 62 Ind. 57. 

Consequential damag-es— Liability.— A municipal corporation is not liable for con- 
sequential injuries resulting from the improvement of a public street or alley in a care- 
ful and skillful manner, but it is liable for negligence, either in devising the plans for 
such improvement, or in executing the same ; and it is also liable for consequential 
damages resulting from a change of an established grade, whether it be guilty of negli- 
gence or not. City of New Albany v. Lines, 21 App. 380; Weis v. City of Madison, 
75 Ind. 241, 245; Cummins v. City of Seymour, 79 Ind. 491,493; City of Evansville 
V. Decker, 84 Ind. 325, 328; Platter v. City of Seymour, 86 Ind. 323, 325; City of 
Crawfordsville v. Bond, 96 Ind. 236, 241; City of Kokomo v. Mahan, 100 Ind. 242, 
246; City of North Vernon v. Voegler, 103 Ind. 314, 317; City of Lafayette v. Wort- 
man, 107 Ind. 404, 407; Rice v. City of Evansville, 108 Ind. 7, 11; Town of Sullivan v. 
Phillips, 110 Ind. 320, 322; City of Lafayette v. Nagle, 113 Ind. 425, 426; Davis v. City 
of Crawfordsville, 119 Ind. 1, 2; City of Anderson v. Bain, 120 Ind. 254, 261; Burkam 
V.Ohio, etc., R. Co., 122 Ind. 344, 346; City of Jeffersonville v. Meyers, 2 App. 532, 
538; Stein v. City of Lafayette, 6 App. 414, 416; City of Aurora v. Fox, 78 Ind. 1; City 
of Delphi V. Evans, 36 Ind. 90; Macy v. City of Indianapolis, 17 Ind. 267; Snyder v. 
President and Trustees, 6 Ind. 237 ; City of Lafayette v. Bush, 19 Ind. 326; City of Vin- 
cennes v. Richards, 23 Ind. 381; City of Richmond v. Test, 18 App. 482; Elhott Roads 
and Streets, p. 350; 2 Dillon Munic. Corp., 4th ed., §§ 989, 990 and notes. 

Consequential damages resulting from the grading of a public street do not constitute 
a taking or appropriation of property, within the meaning of the constitution. Weis v. 
City of Madison, 75 Ind. 241, 245; City of Kokomo v. Mahan, 100 Ind. 242, 246; City 
of Lafayette v. Bush, 19 Ind. 326; City of Delphi v. Evans, 36 Ind. 90; City of Lafayette 
V. Spencer, 14 Ind. 399. 

Where the land of a citizen is not actually appropriated in the making of improve- 
ments, the owner is not entitled to have the damages first assessed and tendered ; but 
when it becomes necessary in making such improvements to appropriate and use the 
real estate of a citizen his damages must be first assessed and tendered. City of Delphi 
V. Evans, 36 Ind. 90. 

Neg'lig'ence — Damag'es. — Municipal corporations are responsible to the same extent, 
and in the same manner, as natural persons, for injuries occasioned by negligence or 
unskillfulness in the construction of work for the benefit of the corporation. Ross v. 
City of Madison, 1 Ind. 281; City of North Vernon v. Voegler, 103 Ind. 314; City of 
Madison v. Ross, 3 Ind. 236; City of Logansport v. Wright, 25 Ind. 512; City of In- 
dianapolis V. Huffer, 30 Ind. 235. 

Damag-es— Successive actions. — In an action for injury to real estate caused by the 
negligence of corporate officers in constructing a public work of a permanent character, 
as the grading and improvement of a street, all damages, past and prospective, must be 
recovered in one suit, and for fresh damages resulting from the original wrong, a second 
action can not be maintained. City of North Vernon v. Voegler, 103 Ind. 314 ; Stein v. 
City of Lafayette, 6 App. 414; Porter v. Midland R. Co., 125 Ind. 476; City of Lafay- 
ette V. Nagle, 113 Ind. 425. 

But the wrong is a continuing one for which successive actions may be maintained 
by successive owners who suffer damage thereby v/hen the improvement negligently 



255 IMPROVEMENT OF STREETS. § 218 

made is not of a permanent character. Where a city constructs drains in its streets 
and alleys which collect surface water and discharge it in a body upon an adjacent lot, 
the ^Yrong is a continuing one, and successive actions may be maintained. City of New 
Albany v. Lines, 21 App. 380. 

IncoiiYenieilce. — A city can not be held liable to an adjoining property owner for 
damages resulting from inconveniences caused by the improvement of the street, when 
the work is done with reasonable care and dispatch. Cummins v. City of Seymour, 79 
Ind. 491. 

Plans — Error of judgment — Neg'lig'ence. — A municipal corporation is not liable for 
mere errors of judgment as to the plan of a public improvement, but is responsible for 
negligence in devising the plan of an improvement, as well as for negligence in execut- 
ing the work. AVeis v. City of Madison, 75 Ind. 241, 250; Cummins v. City of Seymour, 
79 Ind. 491, 494; City of Evansville v. Decker, 84 Ind. 325, 326; City of North Vernon 
V. Voegler, 103 Ind. 314, 316; Rice v. City of Evansville, 108 Ind. 7, 8; City of Terre 
Haute V. Hudnut, 112 Ind, 542, 544; City of Valparaiso v. Adams, 123 Ind. 250; City of 
New Albany v. Ray, 3 App. 321 ; City of Peru v. Brown, 10 App. 597 ; City of Indian- 
apolis V. Huffer, 30 Ind. 235; City of Seymour v. Cummins, 119 Ind. 148; Elliott Roads 
and Streets, pp. 339, 354. 

Defective plan— Inference of negiig'ence. — Negligence will not be inferred, as a mat- 
ter of law, from the fact that culverts are defective in plan, and become obstructed and 
filled up vdth dirt and sand. City of Peru v. Brown, 10 App. 597. 

If the plan adopted by a city for the improvement of the street is so defective that the 
adjoining property is injured by being made inaccessible, or rendered unhealthy on ac- 
count of stagnant water, the city will be liable for damages. City of Seymour v. Cum- 
mins, 119 Ind. 148. 

Plans— Specifications— Presumption.— It is the statutory duty of the city civil engi- 
neer to prepare plans and specifications of proposed street improvements, and it mil be 
presumed that he prepares them in proper time and in conformity to the ordinances. 
Smith V. Duncan, 77 Ind. 92, questioned; Taber v. Grafmiller, 109 Ind. 206, 208; Taber 
V. Ferguson, 109 Ind. 227. 

Such plans and specifications are competent evidence in a suit to collect a street im- 
provement assessment. Taber v. Ferguson, 109 Ind. 227. 

Adoption of plan. — Where the common council of a city directed that a plan for the 
improvement of S. street be prepared, which was accordingly done and reported, and 
the action of the council thereon appeared on its record thus : ' ' The survey and plan 
for the improvement of S. street by J. is accepted," an adoption of the plan was sufli- 
ciently shown. City of Aurora v. Fox, 78 Ind. 1, 10. 

Street improvements— Negligence.— Where an incorporated toAvn or city under- 
takes the improvement of its public streets, and does the work negligently or unskill- 
fuUy, it will be hable in damages to an abutting lot-owner for such injuries to his lot 
and premises as result directly from its negligence or unskillfulness in the improvement 
of such streets. Tow^n of Princeton v. Gieske, 93 Ind. 102, 105. 

An ordinance of a municipal corporation directing the construction of a work within 
the general scope of its powers is a judicial act, for which the corporation is not respon- 
sible, but the execution of the work is a ministerial act, and the corporation is respon- 
sible that it is done in a safe and skillful manner. City of Logansport v. Wright, 25 
Ind. 512. 

Where an incorporated town itself undertakes the improvement of its streets, and it 
is sued by an abutting proprietor to recover damages resulting from its negligence in 
doing the work, it is no defense to the action that the improvement of the streets en- 
hanced the market value of the plaintiff's property; and, therefore, evidence offered in 
such a case of such increased market value was incompetent and was properly excluded. 
Town of Martinsville v. Shirley, 84 Ind. 546, 549. 



§ 218 CITIES. 256 

Nuisance, when not abatable.— The authority of the common council of a city, as to 
the manner of improving streets and alleys, being an agency of the state in the exercise 
of legislative power, can not be controlled by the courts, and where the improvement is 
such that it cuts off ingress and egress to and from property, the nuisance is one which 
can not be abated, and there can only be one recovery for damages present and pros- 
pective, and that by the owner of the property when the injury occurred. Stein v. City 
of Lafayette, 6 App. 414, 421. 

Street improvement— Liability.— Sections 3624 to 3628, E. S. 1894 {post, §§219-223), 
apply only when a city seeks to improve its streets at the expense of the abutting own- 
ers, and they do not limit the general powers over streets conferred by other provisions 
of law ; and when a city, in the exercise of its general powers, and at the expense of its 
treasury, grades a street, it is not liable to adjoining proprietors for consequential in- 
juries merely because it fails to comply wdth the requirements of those sections. City 
of Delphi V. Evans, 36 Ind. 90, criticised; City of Aurora v. Fox, 78 Ind. 1, 4, 

Contractor— Possession of street for improvement- Interference— Damag'es. — 
When a city enters into a contract for the improvement of a street, it grants to the contrac- 
tor, and those acting under him, the right to take possession of the street for the purpose 
of making the improvement ; and, thereafter, the city has no right to interfere with the 
legitimate prosecution of the work, and any interference by it, resulting in injury or 
damage to the contractor or sub-contractors, it must answer for. City of Dunkirk v. 
Wallace, 19 App. 298. 

Where a contractor is in possession of street under a contract with the city for its 
improvement, and is prosecuting the work, and city retakes possession of the street for 
the purpose of constructing a sewer therein, and after the construction of the sewer 
turns possession of the street over to another contractor under a new contract for its 
improvement, the city must pay the first contractor for the work done by him under 
his contract prior to the retaking of possession by the city for the construction of the 
sewer. City of Dunkirk v. Wallace, 19 App. 298. 

Councilman — Ordinance. — The consent of a councilman can not affect the force of 
an ordinance directing the improvement of a street enacted by the municipal legisla- 
ture, or give a right to fix the lines of a street and complete an unfinished contract. 
Sims V. City of Frankfort, 79 Ind. 446. 

Improvements out of repair. — A city is liable, if it negligently and knowingly per- 
mit any public improvement to become out of repair, for the damages ensuing. Stein 
V. City of Lafayette, 6 App. 414, 417. 

IVhere the gist of an action stated in the complaint is negligence of the municipality in 
failing to keep a drain or open ditch in repair, by carelessly and negligently allowing 
the same to fill up with sand and other obstructions, and by building across the drain 
approaches to adjoining alleys without placing drains under the approaches, by reason 
of which obstructions the water overflowed the drain, and flowed into plaintiff's cellar, 
keeping it damp and unhealthful, injuring the foundation of the house, and destroying 
large quantities of personal property mentioned, the complaint states a cause of action. 
City of Valparaiso v. Cartwright, 8 App. 429, 430. 

In such case, where the facts found by the special verdict were, substantially, those 
alleged in the complaint, and, in addition, that the ditch was so defectively constructed 
as not to be adequate to carry off the water, the special verdict is sufiicient to support 
the theory of the complaint, and plaintiff is entitled to recover. City of Valparaiso v. 
Cartwright, 8 App. 429, 430. 

Earth taken from street. — In the improvement of a street the earth taken from 
one portion thereof may be used to fill another portion, but earth can not be taken 
from a street that is being improved and used on a street not being improved. City of 
Delphi V. Evans, 36 Ind. 90 ; City of Aurora v. Fox, 78 Ind. 1 ; Musselman v. Manly, 42 
Ind. 462. 



257 IMrROVEMENT OF STREETS. § 218 

Grade and chang-e of grade.— Cities and towns are not liable for consequential dam- 
ages necessarily caused in grading or changing the grade of a street, except they are 
made liable by some statute, the constitution or by the charter of incorporation. City 
of Valparaiso v. Adams, 123 Ind. 250; Snyder v. Town of Kockport, 6 Ind. 237; Macy 
V. City of Indianapolis, 17 Ind. 267; City of Seymour v. Cummins, 119 Ind. 148; Baker 
V." Town of Shoals, 6 App. 319; City of Delphi v. Evans, 36 Ind. 90; City of Terre 
Haute V. Turner, 36 Ind. 522; Elliott Roads and Streets, p. 336; 2 Dillon Munic. Corp., 
4th ed., §§ 989, 990. 

A city is not liable for consequential damages caused by an original grading and im- 
provement of its streets, unless the work be negligently performed, in which case it is 
liable for the injury caused by its negligence. City of Jeffersonville v. Myers, 2 App. 
532; Davis v. City of Crawfordsville, 119 Ind. 1; City of Valparaiso v. Adams, 123 Ind. 
250; City of Wabash v. Alber, 88 Ind. 428. 

A city may not change a street grade legally established by it, without first assessing 
and paying, or tendering, the damages occasioned by such change, to the abutting prop- 
erty owner. City of Logansport v. Pollard, 50 Ind. 151; City of Kokomo v. Mahan, 
100 Ind. 242; City of Lafayette v. Wortman, 107 Ind. 404; City of Huntington v. Grif- 
fith, 142 Ind. 280; Keehn v. McGilhcuddy, 15 App. 580; Stein v. City of Lafayette, 6 
App. 414; City of Anderson v. Bain, 120 Ind. 254. 

Note. — For fuller collection of authorities on fixing and changing grade of streets 
see ante, § 91, 

Oood complaint and instruction. — In an action against a municipality and others 
for damages for injury to property of the plaintiffs alleged to have resulted from the 
building of an embankment, which raised the established grade of the street, the com- 
plaint alleged that the defendants wrongfully and unlawfully constructed, and caused 
to be constructed, the embankment, etc. The above allegation was sufficient to charge 
the city with liability, and it was not necessary to aver that the alleged wrongful 
action of the city was authorized by its common council. An instruction to the jury 
that the verdict might be against the city alone or against the other defendants alone, 
if the evidence should so warrant, was proper. City of Jeffersonville v. Myers, 2 App. 
532, 535. 

Abutting' owner's consent — Waiver. — In such an action, the plaintiffs could not re- 
cover damages if they consented to the raising of the grade of the street, unless the 
damages grew out of the unskillful manner of doing the work, and not on account of 
raising the grade. If the plaintiffs were induced to waive objection to the progress of 
the work on the condition that certain expenditures should be made in building walls 
and otherwise doing the w^ork in a specific manner, and the work was not done as 
promised, the measure of damages would be the damage sustained on account of the 
work not being done as promised. City of Jeffersonville v. Myers, 2 App. 532, 539. 

Drainag'e — Drainag'e commissioners. — The cities of the state have exclusive juris- 
diction of the matter of drainage within their limits, and there is no authority for the 
construction of drains in cities by drainage commissioners under the direction of the 
circuit court. Anderson v. Endicutt, 101 Ind. 539; Eomaine v. Judson, 128 Ind. 403. 

Drainag'e assessment— Collateral attack.— The jurisdiction of the circuit court to 
establish a ditch, under the drainage law of 1881, partly within the limits of an incor- 
porated city, and levy benefit assessments upon city property, can not be questioned by 
a property owner in a suit to collect an assessment. State v. Jackson, 118 Ind. 553. 

Surface water — Injury by. — A city is not liable for injuries consequent merely upon 
the careful and skillful improvement of its streets, whereby surface water is thrown 
upon private property, but it is liable if it collect the water in a channel and pour it 
upon another's land, within or without its corporate boundaries. AVeis v. City of Mad- 
ison, 75 Ind. 241, 248; City of Evansville v. Decker, 84 Ind. 325. 323; City of North 
Vernon v. Voegler, 89 Ind. 77, 79; City of Crawfordsville v. Bond, 96 Ind. 236, 242; 
CiT. AND To.— 17 



§ 218 CITIES. 258 

Davis V. City of Crawfordsville, 119 Ind. 1, 2; Town of Monticello v. Fox, 3 App. 481,, 
488; City of New Albany v. Ray, 3 App. 321; Patoka Township v. Hopkins, 131 Ind. 
142; Rice v. City of Evansville, 108 Ind. 7; Stein v. City of Lafayette, 6 App, 414; El- 
liott Roads and Streets, pp. 340, 363. 

Natural water-courses— Obstruction.— If a city in the improvement of streets ob- 
structs a natural water-course, it is liable to the persons damaged. Weis v. City of Madi- 
son, 75 Ind. 241 ; Hebron, etc., Co, v. Harvey, 90 Ind. 192 ; Elliott Roads and Streets, p. 
361. 

Ravines through which surface water occasionally flows are not natural water-courses. 
To constitute a natural water-course there must be a bed and banks and evidences of a 
permanent stream of running water. Rice v. City of Evansville, 108 Ind. 7; Board, 
etc., V. Bailey, 122 Ind. 46; Elliott Roads and Streets, p. 361. 

Drainag^e — Contributory neg'lig'ence.— A municipal corporation has no right to con- 
struct a ditch in such a manner as to collect surface water into a channel and pour it 
upon lands where it is not accustomed to run, and in a complaint for such injury it is 
not necessary to aver that the plaintiff was without fault. City of North Vernon v. 
Voegler, 89 Ind. 77, 79. 

Embankments and outlets. — A city may divert surface water from the public high- 
ways, and to do so may build embankments or enlarge outlets. Weis v. City of Madi- 
son, 75 Ind. 241. 

Drainag'e — Outlet. — Where, by its system of improvement and drainage, a city has 
accumulated a large flow of water upon a particular street, it is its duty to provide for 
the escape of the water without damage to adjoining property. City of Indianapolis v. 
Lawyer, 38 Ind. 348 ; City of Crawfordsville v. Bond, 96 Ind. 236 ; City of Ft. Wayne v. 
Coombs, 107 Ind. 75. 

Enjoining" street improvement. — Before the courts will, at the suit of an abutting 
land-owner, enjoin municipal authorities from making street improvements, at the pub- 
lic expense at least, it must be shown that there has been a clear invasion of the rights 
of such complaining land-owner. Town of Marion v. Skillman, 127 Ind. 130, 139. 

Irreparable injury necessary. — Before an injunction will be granted, in such an in- 
stance, it must be shown that unless granted the abutting lot-owner would suffer irre- 
parable injury. Town of Marion v. Skillman, 127 Ind. 130, 141. 

Injunction — Complaint — Answer. — In an action for injunction by a lot-owner against 
a city, where the complaint alleged that plaintiff's lot had been improved with refer- 
ence to the recognized line of the street as laid out and used for more than twenty years, 
and while the municipal officers stood by and saw such improvement made without ob- 
jection, and that the city was about to sever from the side of the lot a strip of ground 
claimed as a part of the street, without an assessment and tender of damages, an an- 
swer that an ordinance to improve the street was duly passed, notice given, proposals 
received and a contract made for grading and graveling the street, and that, upon a 
survey by the proper officer, the strip of ground appeared to be a part of the street 
properly dedicated to the public use and platted in the original plat, was sufficient on 
demurrer. Sims v. City of Frankfort, 79 Ind. 446. 

Quieting* title — Void in part — Tender. — One who seeks to quiet title to land sold for 
an assessment for drainage is not entitled to a general decree while any part of the as- 
sessment is due. One who would save his title must pay, or tender payment of, the 
lien. Unless the assessment is wholly void he is not entitled to a general decree. Jack- 
son V. Smith, 120 Ind. 520, 524; Montgomery v. Wasem, 116 Ind. 343. 

An assessment for construction of sewer drainage is within the subject of the juris- 
diction of the common council, and can not be declared void in a collateral attack to 
quiet title to land sold for the assessment, unless it appears there was no authority over 
the particular improvement ordered or the particular property assessed. Jackson v. 
Smith, 120 Ind. 520, 523. 



259 IMPROVEMENT OF STREETS. § 218 

Abutting Owners — Title — Rights — Liabilities — Duties. 

Abntting" owner — Title— Fee.— While the dedication of the highway is to the public, 
yet, through the same act of dedication, private rights are conferred which the donor 
can not retake, nor the legislature impair, except to take for a public use, upon compen- 
sation to the owner. A conveyance of land bounded by a street conveys the fee to the 
center of the street. The right of the owner of the abutting lot is a property right. 
Ross V. Thompson, 78 Ind. 90, 94; State v. Berdetta, 73 Ind. 185; Cummins v. City of 
Seymour, 79 Ind. 491; Indiana, etc., R. Co. v. Eberle, 110 Ind. 542; City of Lafayette 
v. Nagel, 113 Ind. 425; Burkam v. Ohio, etc., R. Co., 122 Ind. 344; Cox v. Louisville, 
etc., R. Co., 48 Ind. 178; City of Logansport v. Shirk, 88 Ind. 563; Lostutter v. City of 
Aurora, 126 Ind. 436, 438; Kincaid v. Indianapolis, etc., Co., 124 Ind. 577; Egbert v. 
Lake Shore, etc., R. Co., 6 App. 350; Haslett v. New Albany, etc., R. Co., 7 App. 603 ; 
Town of Rensselaer V. Leopold, 106 Ind. 29; Terre Haute, etc., R. Co. v. Bissell, 108 
Ind. 113, 116; Common Council, etc., v. Croas, 7 Ind. 9; Haynes v. Thomas, 7 Ind. 38; 
Tate V. Ohio, etc., R. Co., 7 Ind. 479; Brotzman v. Indianapolis, etc., R. Co., 9 Ind. 467; 
City of Indianapolis v. Kingsbury, 101 Ind. 200; City of Richmond v. Smith, 148 Ind. 
294; Gaston v. Bailey, App. Ct., May 24, 1899; 2 Dillon Munic. Corp., 4th ed., §§5876, 
6o6a, 6o6b ; Elhott Roads and Streets, pp. 15, 112, 129. 

Plat — Rig-hts of lot-owners. — Purchasers of lots have the right to have all streets 
that are marked on the plat by which they purchased kept open as streets, and their 
rights are not confined to the part of the street in front of the lot so purchased by them. 
City of Indianapolis v. Kingsbury, 101 Ind. 200, 211 ; Decker v. Evansville, etc., R. 
Co., 133 Ind. 493. 

The laying out of an addition to a town, recording the plat, and selling lots with ref- 
erence to the adjoining streets and alleys, give to the proprietors of such lots a private 
right in such streets or alleys, distinct from the claim of the public, w^hich even the leg- 
islature can not take away, unless to appropriate such streets or alleys to a public use. 
Common Council, etc., v. Croas, 7 Ind. 9; Haynes v. Thomas, 7 Ind. 38; Elliott Roads 
and Streets, p. 114. 

By the making and recording of a town plat, the designation of streets, lanes and 
alleys on the plat gives to the public only an easement therein for such use as the 
public have a right to make of them; but the fee remains in the proprietor. Cox v. 
Louisville, etc., R. Co., 48 Ind. 178; Board, etc., v. Indianapolis, etc., Co., 134 Ind. 209. 

Non-user ol street. — Streets and alleys in towns and cities do not revert to the ad- 
joining lot-owners because of non-user. The provisions of R. S. 1894, § 6759, respect- 
ing highways not opened and used within six years from the time of being laid out, do 
not apply to streets and alleys in cities. Common Council, etc., v. Croas, 7 Ind. 9. 

Diverting" street to another use.— A street can not be diverted from the use to which 
it was dedicated, and an additional burden can not be laid upon the property abutting 
on the street without lawful authority, and compensation paid or tendered. Lostutter 
V. City of Aurora, 126 Ind. 436. 

Use for market— Injunction.— A city has no power to authorize the occupancy of a 
public street for market purposes. Such act would be the taking of the abutter's fee- 
simple right in the street for uses not authorized by law, and the city may be enjoined 
from doing so. City of Richmond v. Smith, 148 Ind. 294. 

Adjoining' property— Indianapolis.— The state, having laid out for its seat of gov- 
ernment the town of Indianapolis, upon land donated by the Tnited States for such 
purpose, and having made and filed maps thereof as required by law, vested in the 
town for the public use such rights and interests in the streets and alleys as Avould have 
been vested in it if a citizen proprietor had laid out the town in the same way ; and the 
state's grantee in fee-simple of a lot by its number, abutting upon a public street, and 
his assignees, acquired such rights and interests in the street as would be conferred by 
a like conveyance from such a citizen proprietor of a town ; that is, such grantee and 



§ 218 CITIES. 260 

Ills assignees took the fee, subject to the public use, to the center hne of such street. 
Terre Haute, etc., R. Co. v. Scott, 74 Ind. 29, 37. 

Use of for storag'e — Obstruction. — A street may be used temporarily and in a reasona- 
ble manner, by an adjoining owner, for loading and unloading goods, and, perhaps, for 
other purposes, when such use is necessary, but he has no right to appropriate a portion 
of the highway as a stable yard or as a storage place for his drays or wagons when the 
same are not in use. Town of Ladoga v. Linn, 9 App. 15, 20. 

Individual occupancj^ — EstoppeL — The mere occupancy of a street by an individual, 
without objection by the municipal authorities, creates no estoppel. City of Lawrence- 
burgh V. Wesler, 10 App. 153, 163; Cheek v. City of Aurora, 92 Ind. 107. 

There can be no such thing as a permanent, rightful, private possession of a public 
street. State v. Berdetta, 73 Ind. 185, 189; Sims v. City of Frankfort, 79 Ind. 446, 451; 
Wolfe V. Town of Sullivan, 133 Ind. 331, 335; Pettis v. Johnson, 56 Ind. 139; Cheek v. 
City of Aurora, 92 Ind. 107. 

Actions by citizens and lot-owners— Damag'es. — An action for damages can not be 
maintained by a private citizen, or an abutting lot-owner, against one who obstructs a 
public highway, unless such citizen or abutting lot-owner, by reason of such obstruc- 
tion, has sustained some damage peculiar to himself, and not suffered by the public gen- 
erally. Recovery in such case is limited to injury different in kind, and not simply in 
degree, from that suffered by the community in general. Dantzer v. Indianapolis, etc., 
R. Co., 141 Ind. 604; Waltman v. Rund, 94 Ind. 225; Dwenger v. Chicago, etc., R. Co., 
98 Ind. 153; Indiana, etc., R. Co. v. Eberle, 110 Ind. 542; Fossion v. Landry, 123 Ind. 
136; Cummins v. City of Seymour, 79 Ind. 491 ; Chicago, etc., R. Co. v. Eisert, 127 Ind. 
156. 

Actions for damag"es— Injunction. — When a lot-owner suffers damage different^in 
kind from the public by reason of an obstruction in the street, he may maintain an ac- 
tion for damages, or suit for injunction in a proper case ; he is entitled to remedies pro- 
vided by law for the protection of rights in real property. See cases, supra, and Elliott 
Roads and Streets, pp. 536, 538; Cox v. Louisville, etc., R. Co., 48 Ind. 178; Pettis v. 
Johnson, 56 Ind. 139; Tate v. Ohio, etc., R. Co., 7 Ind. 479; Chicago, etc., R. Co. v. 
Eisert, 127 Ind. 156; City of Richmond v. Smith, 148 Ind. 294, 

Obstructing" alley — Dirt. — If dirt is dug up and removed from an alley in a city, thus 
rendering the alley impassable and causing injury to adjoining property, and no order 
or ordinance of the city has authorized the same, and it is not done under a contract 
WTith the city, an action by an adjoining property owner will lie for damages sustained 
by reason of such removal. Musselman v. Manly, 42 Ind. 462. 

In a suit by the owner for invasion of his right that the street in front o-f his lot shall 
forever be kept open to its full width, he is entitled to nominal damages at least. Haynes 
V. Thomas, 7 Ind. 38. 

Injunction by individual— Obstruction.— A private individual may maintain an in- 
junction because of an obstruction of a public street, where such obstruction peculiarly 
affects him, although it does not affect the general public, if the damages are irrepar- 
able, such as affecting the free use of a residence, or an abutting lot, cutting off ingress 
or egress thereto, and endangering the property, hfe and health of persons residing 
thereon. Chicago, etc., R. Co. v. Eisert, 127 Ind. 156, 160. 

Telephone conduits under sidewalk— Injunction.— A complaint by the abutting lot 
owner, for an injunction to prevent a telephone company from laying conduits for wires 
under the sidewalk, is bad on demurrer if it fails to allege that the owner of the abut- 
ting lot owns the fee in the walk or street, or that the walk or street was dedicated to 
public use by one who at the time owned the fee in both the street and the lot. The 
averment of present ownership of the fee must be directly made and not by way of re- 
cital. Erwin v. Central, etc., Co., 148 Ind. 365. 

Right of abutting' owner to dig" trench in alley— Consent of municipal authorities 
—Ordinance prohibiting* excavation.— An abutting property owner may dig a trench 



261 IMFROVEMENT OF STREETS, § 218 

in a public alley for the purpof^e oi niaking a sewer connection without the consent of 
the municipal authorities, unless there is an ordinance to the contrary, and the exist- 
ence of the ordinance must be made to appear by the party having the burden of proof. 
Zimmerman v. Baur, 11 App. 607. 

Excavation in public alley for sewer— Violation of ordinance— Proximate cause 
of injury. — Where a trench is excavated in a public alley for the purpose of tapping a 
public sewer in violation of a city ordinance, one whose horse, in passing along the 
alley, steps into the excavation and is injured, can not recover therefor by reason of 
the violation of the ordinance, such breach of duty not being the proximate cause of the 
injury. Zimmerman v. Baur, 11 App. 607. 

Excavations by lot-OAvner. — Owners of property on a street who make excavations 
in a street or sidewalk must properly protect the same or they will be liable to any one 
injured by failing into such excavations. Silvers v. Nerdlinger, 30 Ind. 53 ; Wickwire 
V. Town of Angola, 4 App. 253; Gaston v. Bailey, App. Ct., May 24, 1899. 

Excavation— Duty of abutting' ow^ner. — Where an excavation is made in a sidewalk 
with the consent of the municipality, the abutting property owner is bound to exercise 
ordinary care and diligence to maintain it in a safe condition. Wickwire v. Town of 
Angola, 4 App. 253, 257. 

Excavation on lot. — When the public have, by permission, traveled on foot for years 
over an open city lot, it is the duty of the owner upon making an excavation in the path- 
way, with a view to erecting a building, to put some guard or Avarning for public protec- 
tion, and a failure to do so gives a right of action to one w^ho, without fault, is injured 
thereby. Graves v. Thomas, 95 Ind. 361 ; Carskaddon v. Mills, 5 App. 22. 

Excavation — Damag*es— Evidence. — In an action against a city to recover damages 
for unlawful excavations made adjoining plaintiff's lot, evidence showing what Avould 
be the cost of a wall along the line of the plaintiff's lot, to protect it from caving, is ad- 
missible, the necessity for such a wall being a question for the jury. City of Aurora v. 
Fox, 78 Ind. 1. 

Defective walk, liability of lot-owner. — The defendants owned a lot with a business 
building thereon, abutting upon one of the public streets of a town. There was an 
area in the sidewalk in front of said building, partly covered by a flagstone and partly 
open, for the purpose of light and of gaining access to the basement. The open portion 
w^as guarded by an iron railing. The stone was placed on a secure foundation, but 
partly on account of decay and partly on account of an unusually severe rain-storm, 
the foundation gave way and one side of the stone was thrown forward so as to render 
the sidewalk dangerous. The stone was removed from its dangerous position with the 
knowledge and consent of the municipality, and the area thereby left micovered and 
unguarded for a period of three weeks. During that interval a pedestrian fell into the 
excavation caused by the removal of the stone, and was injured, and recovered a judg- 
ment against the municipalit5^ In an action against the abutting property owners by 
the city, they can not escape liability by showing that the particular part of the area 
which caused the injury was of no benefit to and was not used by them, as the area 
must be considered as an entirety. Although the area was excavated by a prior owner 
and a remote grantor of the defendants by and with the consent of the town, the de- 
fendants were liable for a failure to keep it in a safe condition, if they maintained and 
used it. It is presumptively a beneficial appurtenance to the realty. If the injury- was 
caused by the giving way of the foundation walls which supported the flagstone, those 
walls were made necessary by the area, and it was the duty of the defendant to main- 
tain them in a safe condition. Wickwire v. Town of Angola, 4 App. 253, 257. 

Abutting- owner— Independent contractor— Liability.— An abutting lot-owner who 
lets a contract to another to do a particular work which is not intrinsically dangerous 
and does not necessarily create a nuisance, as for instance, the erection of a building 
upon his lot, or the tearing down of an old one, or the laying of a drain in the adjoin- 



§ 218 CITIES. 262 

ing street or alley, reserving to himself no control over such work, except the right to 
require it to conform to a particular standard when completed, is not liable for the 
negligence of the party to whom the contract is let in obstructing the street, or alley or 
gutter. Eyan V. Curran, 64 Ind. 845; Zimmerman v. Baur, 11 App. 607; Bohrer v. 
Dienhart, etc., Co., 19 App. 489; New Albany, etc., Mill v. Cooper, 131 Ind. 363. 

Same. — But where the abutting lot-owner expressly directs the placing of material so 
as to obstruct the street or gutter he is liable for the negligent acts of the contractor in 
respect to such obstructions. Bohrer v. Dienhart, etc., Co., 19 App. 489. 

Railroads — St^^eet Railways. 

Power to g-rant occupancy of street to railroads.— Cities have power to grant to 
railroad companies the right and privilege to lay down and use railroad tracks over, 
along or across the streets, highways and alleys. Burkam v. Ohio, etc., R. Co., 122 Ind, 
344; Kistner, etc., v. City of Indianapolis, 100 Ind. 210; Tate v. Ohio, etc, R. Co., 7 
Ind. 479; Haslett v. New Albany, 7 App. 603; 3 Elhott Railroads, §§ 1076, 1077, 1078. 

Conditions. — The municipal corporation in granting a right to a railroad company 
to occupy the streets may impose reasonable conditions, and such conditions will be 
binding on the railroad company accepting the grant, if not repugnant to the franchise 
granted to the company by the legislature, or to constitutional or statutory provisions. 
2 Elliott Railroads, § 361; 3 Elliott Railroads, §1081 and cases; Elliott Roads and 
Streets, p. 565. 

Some of the conditions which it has been held may be imposed are, that other com- 
panies may be permitted to use the tracks, that the company shall repair the street 
crossings, pay a license fee for the use of the streets, comply with regulations as to loca- 
tion of tracks, etc, 2 Elliott Railroads, § 361 ; 3 Elliott Railroads, § 1081 and cases. 

Exclusive power — Railroad tracks, — Under this section the common council of an 
incorporated city has exclusive power over the streets, highways and alleys within such 
city, and may grant a railroad company the right and privilege to lay down and use 
railroad tracks over, along or across such streets, highways or alleys. Under the forty- 
second clause of § 3541, R. S. 1894 {ante, § 124), such common council may provide, by 
ordinance, for the security of citizens and others from the running of trains through the 
city, and, to that end, may require such railroad company to provide and use suitable 
safeguards at the intersections of streets, highways or alleys, or elsewhere within such 
city ; but such city is not liable in damages for injuries to persons or property which 
may result from the non-exercise of such legislative power by its common council. 
Xistner v. City of Indianapohs, 100 Ind. 210, 218. 

Reg"ulation and control— Police power.— All rights granted or contracts made by 
municipal corporations for the occupancy of streets by railroads are subject to the ex- 
ercise of police power, and the municipalities may impose all reasonable regulations 
for the protection of life, health, comfort, property, etc. Indianapolis, etc., R. Co. v. 
Kercheval, 16 Ind. 84; 3 Elliott Railroads, § 1082; Elhott Roads and Streets, p. 58. 

A city, in granting a right of way to a railroad company to use a street, does not 
deprive an abutting owner of his proprietary right in the street. The grant by the 
municipal corporation simply grants the privilege the city has pov/er to grant. In 
granting such a privilege a city exercises a power delegated to it by the sovereign, and 
is not liable for exercising such power. Burkam v. Ohio, etc., R. Co., 122 Ind. 344. 

Location of railroad on street— Damag-es.— The construction of a railroad track 
along a street on which locomotives and trains of cars are used, is a new use or appro- 
priation of the soil, and entitles the owner of the fee to an action for damages, and to 
all other remedies provided by law for the protection of rights in real property. Cox 
V. Louisville, etc., R. Co., 48 Ind. 178; Terre Haute, etc., R. Co, v, Scott, 74 Ind. 29; 



263 IMPROVEMENT OF STREETS. § 218 

Sharpe V. St. Louis, etc., E. Co., 49 Ind. 296; Chicago, etc., R. Co. v. The Whiting, 
etc., R. Co., 139 Ind. 297; Protzman v. Railroad Co., 9 Ind. 467; Burkam v. Ohio, etc., 
R. Co., 122 Ind. 344; Indianapolis, etc., R. Co. v. Smith, 52 Ind. 428; Tate v. Ohio, 
etc., R. Co., 7 Ind. 479; Terre Haute, etc., R. Co. v. Rodel, 89 Ind. 128; 1 Beach Pub. 
Corp., § 663; ElHott Roads and Streets, p. 160. 

Street railway not an additional burden.— A street railway is not an additional 
burden to that of the general easement in the street, and the owners of the fee are not 
entitled to damages on account of the construction thereof on a public street. Eichels 
V. Evansville, etc., R. Co., 78 Ind. 261; Indianapolis, etc., R. Co. v. Citizens', etc., R. 
Co., 127 Ind. 369; Chicago, etc., R. Co. v. The Whiting, etc., R. Co., 139 Ind. 297. 

Electric and cable roads.— Cable roads are not an additional burden. 1 Elliott Rail- 
roads, § 9 and cases, and 3 Elliott Railroads, §§ 1088, 1135; 1 Beach Pub. Corp., § 664. 

Telephone system. — The reasonable use of the streets of a city for the equipment of a 
telephone system is not a new and additional servitude, for which the abutting property 
owner is entitled to compensation. Magee v. Overshiner, 150 Ind. 127. 

Right of street railroad to cross steam railroad at street crossing— In junction.— 
Since a street railway is not an additional burden to that of the easement which the 
general public has in the street, and the street railway company's right to use the 
street is founded on that easement, it must be held that the right of a street railway to 
cross over the tracks of a steam railway laid on such street is subject to no conditions 
other than those to which the general public is subject in traveling over such, street. 
Hence it is not error to enjoin a steam railway company from interfering with a street 
railway company where the latter is proceeding to construct a proper crossing at its own 
expense. Chicago, etc., R. Co. v. Whiting, etc., Street R. Co., 129 Ind, 297; Chicago, 
etc., R, Co. V. Hammond, etc., R. Co., 151 Ind. 577. 

L^pon the question of the degree of care to be exercised by those in charge of a rail- 
road train, and the conductor of a street car, at a crossing, see Madison, etc., R, Co. v. 
Taffe, 37 Ind. 361. 

Rig-ht of way— Appropriation of— Assessment of damag-es— What included in.— 
Where proceedings, in pursuance of the statute, to appropriate a right of way, and for 
the assessment of damages sustained by property owners along the right of way or abut- 
ting upon a street upon which the proposed road is to be located, are resorted to, future 
necessities, as well as the present needs of the company, are conclusively presumed to 
be taken into consideration, and where damages are assessed it includes all damages, 
present and prospective, resulting from the construction, and from all necessary and 
proper use of the right of way on the street or highway by the railroad company for 
railroad purposes. White v. Chicago, etc., R. Co., 122 Ind. 317; Porter v. Midland R. 
Co., 125 Ind. 476; Chicago, etc., R. Co. v. Eisert, 127 Ind. 156; Chicago, etc., R. Co. v. 
Hunter, 128 Ind. 213; Rehman v. New Albany, etc., R. Co., 8 App. 200; 3 Elliott Rail- 
roads, § 1004. 

Additional tracks— Side track or switch.— After such assessment of damages, no 
additional assessment can be made for additional tracks, side tracks or switches, the 
same not constituting an additional burden not included in the original appropriation. 
White V. Chicago, etc., R. Co., 122 Ind, 317; Chicago, etc., R. Co. v, Eisert, 127 Ind. 
156. 

Rig'ht of way — User. — The constant and exclusive use by a railroad company of part 
of a street of a town, as and for a right of way, can not in any time ripen into an abso- 
lute ownership of such part. Indianapolis, etc., R. Co. v. Ross, 47 Ind. 25. 

Dedication— Street and railroad crossing's.— Where, by platted additions to a town, 
streets are dedicated to the public which cross a railroad track, and the railroad com- 
pany constructed crossings over its track, and such streets and crossings were used by 
the public for general use as a public highway for six or seven years, the public acquired 



§ 218 CITIES. 264 

such rights therein as could not be divested by the raih'oad company tearing up the 
approach and crossing. Evansville, etc., E. Co. v. State, 149 Ind. 276. 

Dedication condition, effect of — Additional track. — The use of a street for a railroad 
is a public use, and is not necessarily destructive of the character of the pubhc way; 
and a condition annexed to a dedication that a railroad company should have the right 
to lay a track or tracks in the street dedicated is not void. City of Noblesville v. Lake 
Erie, etc., R. Co., 130 Ind. 1, 5. 

When a donor of a street attaches a condition to it that a railroad company shall have 
the right to lay its tracks therein ; and such company lays and uses only one track in 
such street, it does not lose its right to lay therein an additional track, even though 
more than twenty years have elapsed between the grant and the assertion of its right 
to lay the additional track. City of Noblesville v. Lake Erie, etc., R. Co., 130 Ind. 
1,5. 

Rig'iit of way— Effect of grant. — A grant of the right of way for a railroad does not 
carry by implication the right to raise the street beyond the limits of the right of way, 
nor release the railroad company from the damages accruing to the abutting land-owner. 
Egbert v. Lake Shore, etc., R. Co., 6" App. 350, 352, 

Abutting' owner— Wrongful construction— Ejectment — Injunction.— An abutting 
owner may maintain an action against a railroad company, which wrongfully builds its 
track upon the street, and where there is no waiver or estoppel he may maintain eject- 
ment or injunction. Porter v. Midland R. Co., 125 Ind. 476, 477; Terre Haute, etc., R. 
Co. V. Rodel, 89 Ind. 128; Cox v. Louisville, etc., R. Co., 48 Ind. 178; 2 Elliott Rail- 
roads, § 630. 

Limitation — Daniag'es. — But where such owner stands by, without objecting, until 
the rights of the public and the third parties have intervened, he may maintain neither 
ejectment nor injunction, but may resort to an action for damages. The action for 
damages for the injury to the property by the wrongful occupancy must be brought 
within six years from the completion of the grade, or it will be barred by the statute of 
limitations, which limits to six years actions for injuries to real property. Porter v. 
Midland R. Co., 125 Ind. 476, 478; Strickler v. Midland R. Co., 125 Ind. 412; Protzman 
V. Indianapolis, etc., R. Co., 9 Ind. 467. 

An abutting owner, who expressly consents to the occupancy of a street, can not 
afterward enjoin the use of the street nor recover damages. Burkam v. Ohio, etc., R. 
Co., 122 Ind. 344. 

Abutting" owner's special interest. — A municipal corporation has the right to grant 
permission to a railroad company to build its tracks over and upon its streets, but such 
grant does not transfer any proprietary rights of the persons owning lands abutting 
on such streets, such permission being simply a grant of the right to share with the gen- 
eral public the use of the easement, and to that extent the power of the city is unlim- 
ited ; but such a grant does not impair or destroy the right of an abutting land-owner, 
owning the fee in the street, to recover damages for the additional burden imposed 
upon his land. If, however, the railroad is not constructed upon that part of the street 
in which he owns the fee, before he can recover damages he must allege and prove in- 
juries to his property different from those sustained by the general public. A proceed- 
ing based upon §§ 917-921, R. S. 1894, can only be available when there has been 
an actual taking of property. Haslett v. New Albany, 7 App. 603, 605. 

The owner of land appropriated for a railroad can not be required to initiate proceed- 
ings, under the statute, for the assessment of damages for such appropriation. Cox v. 
Louisville, etc., R. Co., 48 Ind. 178. 

An owner of a lot abutting upon a street may have a peculiar and distinct interest in 
the easement in the street in front of his lot, which includes the right to have the 
street kept open and free from any obstruction which prevents or materially interferes 
with the ingress and egress to and from his lot, which is an interest distinct from that 



265 • IMPROVEMENT OF STKEET.S. § 218 

possessed by the general public, and is appendant to the lot and the improvements 
thereon. Decker v. Evansville, etc., R. Co., 133 Ind. 493, 496. 

Abutting' owner— Damag"es recoverable.— Where a railroad company appropriates 
landfor a right of way, and the owner institutes suit for damages, he can only recover 
damage for the land so appropriated and the depreciation in value, because of said rail- 
road, of the land abutting thereto ; and where the land is laid out into lots the owner 
can only recover for the depreciation in value of such lots as abut on the land so appro- 
priated for a right of way, and where only a part of a lot abuts on the land so appropri- 
ated, the railroad company will be liable in damages for its depreciation in value, be- 
cause of said railroad, only in the ratio of the abutting part of said lot to the whole of 
said lot. Evansville, etc., R. Co. v. Charlton, 6 App. 56, 64. 

The abutting owner, notwithstanding the grant by the municipality, has a right to re- 
cover such damages as he may have sustained by the additional burden imposed upon 
his land. His right to compensation, however, is against the railroad company, and 
not against the city. Burkam v. Ohio, etc., R. Co., 122 Ind. 344, 346; Pittsburgh, etc., 
R. Co. V. Harper, 11 App. 481. 

What abutting" owner must show. — It is incumbent upon a property owner who 
seeks to recover damages for the construction of a railroad track in a street to show 
that the additional burden caused injury to his property. Where there are no damages 
there can be no recovery. Indiana, etc., R. Co. v. Eberle, 110 Ind. 542, 547; Burkam 
V. Ohio, etc., R. Co., 122 Ind. 344, 346. 

Obstruction of street— Pleading" — Special injury.— An abutting lot-owner can not 
maintain an action against a railroad company for constructing and operating its rail- 
road upon the street of a city, where the injuries complained of are such only as he sus- 
tains in common with the public generally ; and a complaint which fails to allege spe- 
cial injury to the plaintiff, or that such use and occupation of the street are without 
leave of the city, is insufficient. Terre Haute, etc., R. Co. v. Bissell, 108 Ind. 113, 116; 
Dwenger v. Chicago, etc., R. Co., 98 Ind. 153; Indiana, etc., R. Co. v. Eberle, 110 Ind. 
542; Dantzer v. Indianapolis, etc., R. Co., 141 Ind. 604; Decker v. Evansville, etc., R. 
Co., 133 Ind. 493. 

AnsAver to abutter's complaint.— Complaint by the owner of a lot having buildings 
thereon, used for worship and a school, alleging the use of the street adjoining by a 
railroad company for its track and running cars thereon, whereby worship was inter- 
rupted, and the children attending the school were imperiled, and the street was ob- 
structed, etc. Answer, that the railroad was operated in the usual way necessary for 
such business ; that the railroad was nine feet wide, and none of it upon the plaintiff's 
premises, being beyond the center of the street, and was constructed by leave of the 
city and in manner as required by an ordinance ; that the street was sixty-six feet wide 
and was not obstructed save as the running of cars carefully and as is usual might tem- 
porarily have that effect as to its general use. The answer was good. Dwenger v. Chi- 
cago, etc., R. Co., 98 Ind. 153, 156. 

''Community in g"eneral" defined, — Where a railroad company has secured from 
the proper municipal officers the right to lay their railroad track in a certain street, 
which right, as a street, was acquired by more than twenty years' adverse user, and 
the fee of which was not in the adjoining lot-owners, a person who had leased a lot 
abutting on said street, and erected a business house thereon, has no right to enjoin 
the company from laying their railroad track, when such company has not assessed, or 
tendered to the plaintiff, the damages he will sustain by reason of said track and its use 
as such, unless he can show that he will suffer damages thereby different from the com- 
munity in general, and the term "community in general" means those who reside in 
the immediate vicinity of the raih'oad, and are subject to the inconveniences incident 
to its structure. Decker v. Evansville, etc., R. Co., 133 Ind. 493, 495. 

Injunction— Complaint.— A complaint against a railroad company alleging that the 



§ 218 CITIES. 266 

plaintiffs are owners of lots abutting on a certain street in a city, that the defendant 
has taken possession of said street in front of said lot, and has laid down its track 
thereon and used the same, but not alleging that the defendant intends or threatens to 
continue such use, to the injury of the plaintiffs, or at all, does not show a good ground 
for an injunction to prevent the defendant from continuing to maintain and use such 
railway. Roelker v. St. Louis, etc., R. Co., 50 Ind. 127; Cox v. Louisville, etc., R. Co., 
48 W. 178. 

Viaducts— Bridg'es— Grade crossing's, etc. — The legislature may delegate to munici- 
pal corporations the power to require railroads to construct viaducts, bridges, tunnels, 
etc., and to change grades, etc. Chicago, etc., R. Co. v. Nebraska, 170 U. S. 57; New 
York, etc., R. Co. v. Bristol, 151 U. S. 556; Wabash R. Co. v. Defiance, 167 U. S. 88; 
State V. Missouri Pacific R. Co., 33 Kan. 176; Elliott Roads and Streets, pp. 32, 33. 

Mandamus. — Where a railroad company is under obligation to construct viaducts or 
bridges it may be mandated to construct the same. Elliott on Railroads, §§ 639, 1111, 
and notes and cases; Elliott Roads and Streets, p. 33. 

Glrade, chang'e of — Abutter injured. — Where a railroad company raises the grade of 
its tracks, and, in order to restore an intersecting highway to its former state as required 
by § 5153, R. S. 1894, it fills and raises the grade of such street beyond its right of way, 
and in front of the property of a private abutting land-owner, thereby materially inter- 
fering with such owner's ingress and egress to and from his property, the railroad company 
is liable to him for the damage done. The approaches to a crossing, whether extending 
beyond the right of way or not, are a part of it. Egbert v. Lake Shore, etc., R. Co., 
6 App. 350, 353. 

The fact that the change of the grade of the street was made to conform to the volun- 
tary change of grade of the railroad, under authority of, and in compliance with, a 
statute, will not relieve the railroad company from liability. Egbert v. Lake Shore, etc., 
R. Co., 6 App. 350, 356; Pennsylvania Co. v. Stanley, 10 App. 421. 

Where such change of grade cuts off one entrance to an alley which affords one of the 
means of ingress and egress to and from lots abutting on such alley, and causes a ma- 
terial diminution in the value of the lots, recovery by the owner can not be defeated on 
the ground that his injury is not different from that suffered by the general public. 
Pennsylvania Co. v. Stanley, 10 App. 421. 

A railroad company is liable in damages for injury occasioned by the construction of 
a raised railroad tracK: along a street of a city, thereby causing the water from rains and 
freshets to flow upon adjacent real estate, and also for injury occasioned by reason of 
the construction of an embankment, on a street approaching a crossing of said track, 
in front of a lot in a city occupied by a dwelling house, thereby rendering the approach 
to the lot in the front on such street impossible for carriages, wagons and vehicles, and 
inconvenient for foot passengers. Indianapolis, etc., R. Co. v. Smith, 52 Ind. 428. 

Change of g'rade — Liability to traveler. — When a railroad company is empowered 
and ordered by a city ordinance to raise its track at the crossing of an intersecting 
street, it has the right and it becomes its duty to do so, but w^ith the exercise of this 
privilege and the discharge of this duty, it must assume the obligation to the public 
imposed by R. S. 1894, § 5153, to restore the street and its sidewalks to their former 
condition of usefulness, so far as it can by the exercise of reasonable care and dihgence, 
and faihng to do so, it is guilty of maintaining a nuisance, and hable to a traveler who, 
by reason thereof, sustains an injury w^ithout fault on his part. Cincinnati, etc., R. Co. 
V. Claire, 6 App. 390, 394. 

Approaches— Company's duty. — The approaches to the part of the street and side- 
walk crossing the track and right of way are a part of the crossing, and it is incumbent 
upon the company to place and maintain the approaches, as well as the crossing, in a 
condition reasonably calculated, in contemplation of the surrounding circumstances, to 
insure the safety of persons passing over the track and upon the street and sidewalk at 



267 IMPROVExMENT OF STREETS. § 218 

the crossing. Cincinnati, etc., R. Co. v. Claire, 6 App. 390, 394; 3 Elliott Eailroacls, 
§1111. 

Joint liability of company and city.— That it was also the duty of the city, in such 
case, to provide and maintain a reasonably safe street and sidewalk, can not relieve 
the railroad company. The general rule in such case is that both are primarily liable. 
Cincinnati, etc., R. Co. v. Claire, 6 App. 390, 395. 

Alleg'ations— Proof — Variance. — Where the erection and maintenance of steps from 
the crossing to the sidewalk, in such case, is treated as the gravamen of the action, the 
fact that the evidence does not show them to be of the exact size and dimensions averred 
in the complaint does not make a fatal variance. Cincinnati, etc., R. Co. v. Claire, 6 
App. 390, 397. 

Maintenance of street crossing*. — Where a railroad company crosses a street or high- 
way with its track, the company must maintain the street or highway in a reasonably 



safe condition for the use of the public. Pennsylvania Co. v. Frund, 4 App. 469, 472; 
Evansville, etc., R. Co. v. Carvener, 113 Ind. 51; Louisville, etc., R. Co. v. Smith, 91 
Ind. 119; Delzell v. Indianapolis, etc., R. Co., 32 Ind. 45; Indiana, etc., R. Co. v. Barn- 
hart, 115 Ind. 399; Terre Haute, etc., R. Co. v. Clem, 123 Ind. 15; Evansville, etc., R.' 
Co. V. Crist, 116 Ind. 446; Louisville, etc., R. Co. v. Pritchard, 131 Ind. 564; Seybold v. 
Terre Haute, etc., R. Co., 18 App. 367; 3 Elliott Railroads, §§ 1092, 1096; Elliott Roads 
and Streets, p. 600. 

Street and railroad crossing's. — A railroad company is required by statute to con- 
struct crossings over its tracks where the same cross the streets of an incorporated tow^n, 
and the failure of a town to enact an ordinance requiring a railroad company to con- 
struct such crossing wdll not relieve the company of such duty. This duty is imposed 
by statute, but exists also independent of any statute. Evansville, etc., R. Co. v. State, 
149 Ind. 276; Indianapohs, etc., R. Co. v. State, 37 Ind. 489; 3 ElHott Railroads, 
§§ 1092, 1102. 

The duty of a railroad to construct street crossings over its tracks is the same whether 
the street or highway was open before or after the railroad was built. Evansville, etc., 
R. Co. V. State, 149 Ind. 276. 

Complaint — Demand. — A complaint against a railroad company by an incorporated 
town to require it to construct street crossings across its tracks, which alleges the re- 
fusal of such company to construct the crossings, need not allege a demand upon the part 
of the town. Evansville, etc., R. Co. v. State, 149 Ind. 276. 

Duty to fence, in towns and cities,— A railroad company is liable for the killing, by 
its locomotive or car, of an animal within a town or city, between the crossings of 
streets and alleys, if the railroad be not fenced, but could be fenced, at such place. It 
is not for the courts to create exceptions to the statutory rule on this subject. Indian- 
apolis, etc., R. Co. V. Lindley, 75 Ind. 426; Pittsburgh, etc., R. Co. v. Laufman, 78 Ind. 
319; Jeffersonville, etc., R. Co. v. Dunlap, 112 Ind. 93; Louisville, etc., R. Co. v. Hart, 
2 App. 130; Wabash, etc., R. Co. v. Williamson, 3 App. 190; Toledo, etc., R. Co. v. 
Cupp, 9 App. 244; Wabash, etc., R. Co. v. Tretts, 96 Ind. 450. 

Mandate.— A mandate will lie to require a railroad company to make their tracks on 
streets to conform to the grade of the street, and to make the crossings of streets and 
highways over the tracks safe and convenient. Indianapolis, etc., R. Co. v. State, 37 
Ind. 489; Cummins, etc., v. Evansville, etc., R. Co., 115 Ind. 417; Clawson, etc., v. 
Chicago, etc., R. Co., 95 Ind. 152; Elliott Railroads, §§ 639, 719, 1092, 1096. 

Where a railroad company constructed its railroad upon the streets of a city under 
an ordinance which required the company, where the grade of said railroad should be 
higher than the street, alley, or public ground, to *' fill up each side of their said road, 
to form a convenient passage over the same," and the company in constructing the 
road erected an embankment upon which it placed its track, and the city caused the 
remainder of the width of said street to be tilled up and graded level with the embank- 



§218 



CITIES. 268 



ment and the railroad, the company having refused to do so, the city could recover the 
cost of such fining up and grading. Indianapohs, etc., E. Co. v. City of Lawrenceburg, 
34 Ind. 304. 

Suit for mandate— Not removable to federal court— An action by a city com- 
menced in a state court to procure a writ of mandamus to compel a railroad company 
to change and reconstruct an over-head crossing erected by the company over and 
across a highway constituting one of the streets of the city, which crossing is alleged to 
be an unlawful and unnecessary obstruction of the traveling pubhc, is not removable 
from the state court into a circuit court of the United States. State of Indiana v. Lake 
Erie etc., E. Co., 85 Fed. Eep. 1. 

Eailroad— Street crossing"— Obstruction— Sig-nals—Neg'lig-ence.— The failure to 
give signals of the approach of the train at a street crossing is negligence per se, and 
fixes the liability of the railroad company to one who, without concurring negligence, is 
injured thereby. Lake Shore, etc., E. Co. v. Boyts, 16 App. 640; Cincinnati, etc., E.Co., 
V. Butler, 103 Ind. 31 ; Pittsburgh, etc., E. Co. v. Burton, 139 Ind. 357 ; Louisville, etc., E. 
Co. V. Eush, 127 Ind. 545; Eailway Co. v. Schmidt, 126 Ind. 290; Hadley v. Lake Erie, 
etc., E. Co., 21 App. 675; Ohio, etc., E. Co. v. Hill, 7 App. 255. See Elliott Eailroads, 
contra, § 1206. 

Same — Travelers— Trains— Eig'ht of passag'e.— The rights of travelers and the rail- 
road company at a street crossing are equal, yet in respect to the priority of passage the 
right of the company is superior. Ohio, etc., E. Co. v. Walker, 113 Ind. 196; Louis- 
ville, etc., E. Co. V. Schmidt, 147 Ind. 638; Louisville, etc., E. Co. v. Philhps, 112 Ind. 
59; Pennsylvania Co. v. Krick, 47 Ind. 368. 

The negligent or careless sounding of the whistle or the blowing off of steam at a pub- 
lic street or highway, or at a public crossing, in such manner as to make an unusual 
noise, and thereby cause horses driven along or over such street, highway, or crossing 
to take fright, which results in an injury, is an actionable wrong. Louisville, etc., E. 
Co. V. Schmidt, 147 Ind. 638; Indianapohs, etc., E. Co. v. Boettcher, 131 Ind. 82; Cin- 
cinnati, etc., E. Co. V. Gaines, 104 Ind. 526. 

Eig^lit to make noise — Limitation of. — Eailroad companies, in the operation of their 
trains, have the right to make all reasonable and usual noise incident thereto, whether 
occasioned by the escape of steam, rattling of cars, etc., and persons whose duties call 
them near a railroad must be presumed to know of this right, and to act with reference 
thereto. Where the law confers the right to use a dangerous element, the only restric- 
tion on such use is that it be not abused. Louisville, etc., E. Co. v. Schmidt, 134 Ind. 
16 ; 2 Elhott Eailroads, § 418. 

The damages to the property on account of the noise may be an element of damage 
for which the owner will be entitled to recover. 3 Elliott Eailroads, §§ 978, 996. 

Blowing" whistle, etc.— Frig-htening* horses— Neg"lig'ence.— The mere sounding of a 
whistle of a locomotive, even at a place of extraordinary danger, is not negligence per 
se, but for negligence in the blowing of the locomotive whistle in populous parts of a 
cit}^ and the making of other noises, such as permitting steam to escape, from which 
horses are frightened and caused to be injured, railway companies are liable. Eodgers 
V. Baltimore, etc., E. Co., 150 Ind. 897; Chicago, etc., E. Co. v. Cummings, App. Ct., 
May 24, 1899; 3 Elliott Eailroads, § 1264. 

Failure to g'ive signal— Neg'lig'ence per se.— It is negligence per se for a railroad 
company to fail to give the statutory signals at public crossings, but to entitle an injured 
party to recover he must show that such negligence was the proximate cause of the in- 
jury, and that he was not guilty of contributory negligence. Baltimore, etc., E. Co. v. 
Conoyer, 149 Ind. 524; Baltimore, etc., E. Co. v. Young, 146 Ind. 374; Chicago, etc., E. 
Co. V. Thomas, 147 Ind. 35; but see 3 Elliott Eailroads, § 1206 and cases. 

But by recent statute the rule as to contributory negligence has been changed, and 
contributory negligence is now a matter of defense. Acts 1899, p. bQ. 



269 IMPnOVEMENT OF STREETS. § 218 

A person approaching a railroad crossing has a right to assume that the company will 
obey the law, by giving the required signals of an approaching train ; and if such })er- 
son, after having exercised due care, and employed his senses of seeing and hearing, to 
ascertain if a train is approaching, and thereby avoid danger, can neither see nor hear 
an advancing or moving train, he is justified in presuming that he can pass over the 
crossing in safety. Baltimore, etc., R. Co. v. Conoyer, 149 Ind. 524. 

Railroad laid in public street— Mutual rig'hts. — Where a railroad track is laid in a 
public street the rights of the public and the railroad company respecting the use there- 
of are mutual, though those of the latter are paramount. A person is not a trespasser 
who walks along such track, and if in doing so his foot becomes fastened in an opening 
which exists by reason of the negligent construction of the track, and he is run upon 
by a train of the railroad company, which is negligently managed, he being without 
fault, the railroad company is liable for the injury sustained. Louisville, etc., R. Co. 
V. Phillips, 112 Ind. 59; 3 Elliott Railroads, § 1093; Terre Haute, etc., R. Co. v. Yant, 
21 App. 486. 

"SVhere a public street crosses a railroad track, a foot passenger has a right to cross 
the railroad anywhere in the street, and to cross otherwise than by a foot path made 
for convenience is not negligence, though thereby his foot becomes so fastened between 
the rail of the track and a guard rail that he can not escape an approaching train, and 
in consequence is injured. Louisville, etc., R. Co. v. Head, 80 Ind. 117. 

Railroad— Construction of in hig-li way— Injury to person near track.— Where a 
railroad company constructs its road-bed along and over a public highway, extending 
through a town, rendering the use of such highway for vehicles impossible, but the 
public continued to use it for a footway, and on each side of the track a space three feet 
wide is kept smooth by the company for the use of foot passengers, the company will 
be liable to a person who is injured while walking along the footway by being struck, 
when at a distance of forty feet from the track, by a cross tie falling from a derailed car 
of a passing train, such car being derailed by the negligence of the company. In such 
case the person is on the public highway, where he has a right to be, and he may re- 
cover from the company for the injuries sustained. Louisville, etc., R. Co. v. Downey, 
J8 App. 140. 

Railroad crossing*— Contributory negiig'ence— Presumption. — A person approach- 
ing upon a street or highway a railroad crossing known by him to be dangerous, must 
exercise care in proportion to the danger to be avoided. He must use his senses, must 
Usten for signals or the noise of approaching trains, must observe signs put up as 
warnings, and look for trains where there is a view of the track; if he is injured at the 
crossing, the fault is prima facie his own, and he must show affirmatively that his own 
negligence did not contribute to the injury ; and in approaching a crossing he must as- 
sume that there is danger and act with ordinary care and prudence on that assumption. 
Hancock v. Lake Erie, etc., R. Co., 21 App. 10; Chicago, etc., R. Co. v. Hedges, 118 
Ind. 5; Ohio, etc., R. Co. v. Hill, 117 Ind. 56; Louisville, etc., R. Co. v. Stommel, 126 
Ind. 35; Smith v. Wabash R. Co., 141 Ind. 92; Cincinnati, etc., R. Co. v. Duncan, 143 
Ind. 524; Pennsylvania Co. v. Meyers, 136 Ind. 242. 

But as to burden of showing contributory negligence see Acts 1899, p. 58. 

A railroad company is clearly guilty of actionable negligence, when, in the night- 
time, without light, signal or warning, it suddenly and rapidly moves an engine across 
a public street, thereby causing personal injury to a traveler on the crossing. Ohio, etc., 
R. Co. V. Hill, 7 App. 255. 

Crossing*— Contributory neg'lig'ence— Ordinance— Safety-gate.— It is not, as a mat- 
ter of law, negligence for one at a railroad crossing to fail to wait long enough after one 
train has passed going in one direction to see whether another train is approaching from 
an opposite direction, where the safety -gates required by ordinance ai-e open, indicating 



§ 218 CITIES. 270 

that no train is approaching ; but failure to operate the safety -gates as required by an 
ordinance is negligence. Indianapolis Union E. Co. v. Xeubacher, 16 App. 21. 

Same — Inyitation of flag'man or g'ate-keeper. — Where a person rides or drives up to 
a railroad crossing by the invitation or direction of a flagman or gate-keeper there sta- 
tioned, and is injured at such crossing from trains, machinery, or appliances of the rail- 
road company, he has the right to recover, because the invitation or direction was an 
assurance of safety upon which he had a right to rely. Louisville, etc., E. Co. v. 
Schmidt, 147 Ind. 638; Cleveland, etc., E. Co. v. Keely, 138 Ind. 600. 

Backing' train— City ordinance requiring* watchman on— Failure to give warn- 
ing*. — A city ordinance, requiring a watchman to be stationed on the rear end of trains 
running backward through the city, in order to avoid accidents, does not require the 
watchman to stop the train or sound a warning when he has reason to believe that the 
person in the way of the train can and does see it approaching, and is in a situation to 
avoid danger by the exercise of his own volition ; and the failure of the watchman to so 
act under the circumstances does not charge the company with negligence. Cincinnati, 
etc., E. Co. V. Long, 112 Ind. 166. 

Obstruction of street crossing' by railroad train— Obstruction in street— Proxi- 
mate cause. — When street crossing is obstructed by a railroad train and a person is 
injured by falling over an obstruction in the street in making a detour to avoid the 
train, the obstruction of the crossing by the railroad train is not the proximate cause of 
the injury. Enochs v. Pittsburgh E. Co., 145 Ind. 635. 

Crossing' street railroad track— Duty of pedestrian to look and listen— Xeg'lig'ence. 
— It is the duty of a pedestrian or one driving upon a street about to cross a street rail- 
road track to look and listen for approaching cars ; failure to do so is negligence per se. 
Citizens', etc., E. Co. v. Helvie, Ind. Sup. Ct., March 9, 1898; Young v. Citizens', etc., 
E. Co., 148 Ind. 54. See Citizens, etc., E. Co. v. Abright, 14 App. 433. 

The rules that govern as to the crossing of steam railroads by travelers upon the high- 
way are not fully applicable to street railroad crossings in cities. Persons crossing street 
railway tracks in a city are not obhged to stop, as well as look and listen, before going 
over the tracks, unless there is some circumstance which would make it ordinarily 
prudent to do so. Evansville, etc., E, Co. v. Gentry, 147 Ind. 408; Connor v. Citizens', 
etc., E. Co., 105 Ind. 62; Citizens', etc., E. Co. v. Spahr, 7 App. 23; Citizens', etc., E. 
Co. V. Abright, 14 App. 433; Muncie, etc., E. Co. v. Maynard, 5 App. 372, 382. 

Eailroad rig'ht of way— Street.— The use of a railroad right of way without the con- 
sent of the railroad company, unless founded on some claim of right, is not sufficient to 
authorize the traveling public to regard that part of said way as a part of the street or 
highway. Louisville, etc., E. Co. v. Miller, 12 App. 414. 

If a railroad company permit a portion of their right of way adjoining their tracks to 
be used for twenty years as a public street, such permitted user will operate as a dedi- 
cation of the ground for a street or highway for a width not greater than is actually oc- 
cupied by the public at the end of the period. Blumenthal v. State, Ind. App. Ct., 
Oct. 28, 1898. 

Same— Street, actual use beyond boundaries as platted.— If a part of a railroad 
right of way was occupied and recognized as a part of a street before the construction 
of the railroad, and such use, occupancy and recognition thereafter continued, then, as 
between the railroad company and the public, it would perhaps be proper to say to the 
jury that the rights of persons upon the street, as such, would be determined by the 
question as to what was in fact the street, and not what was included in the plat. 
Louisville, etc., E. Co. v. Miller, 12 App. 414. 

Street railroad— Power to g-rant rig-lit of way.— The ordinary and incidental powers 
of a municipal corporation are not broad enough to include the power to grant a street 
railway company the right to lay tracks and conduct the business of transporting pas- 



271 IMPROVEMENT OF STREETS. § 218 

sengers upon and over the streets of the municipahty. Eichels v. Evansville, etc., Co., 
78 Ind. 261, 263; Elliott Roads and Streets, pp. 562, 563. 

The grant of authority to lay and maintain street railway tracks upon the public 
streets of cities may be conferred by the legislature, either in express words or by nec- 
essary implication. Eichels v. Evansville, etc., E. Co., 78 Ind. 261. 

Charter constitutes a contract. — A charter granted by the common council to a 
street railway company to construct and operate a street railway within the corporate 
limits of a city, constitutes a contract between such railway company and the city. 
Western Paving, etc., Co. v. Citizens', etc., Co., 128 Ind. 525, 529; Williams v. Citizens', 
etc., Co., 130 Ind. 71, 73. 

Obstruction of street— Liability of city. — If a city permit a street railway company 
to so construct its tracks upon a street as to cause injuries to persons using the street, 
the city ^ill be liable for the damages caused to persons employing ordinary care. City 
of Michigan City v. Boeckling, 122 Ind. 39. 

Exclusive privileg'es. — A municipal corporation can not grant to a street car com- 
pany the exclusive privilege of using its streets for street railway purposes. Indian- 
apolis, etc., E. Co. V. Citizens', etc., E. Co., 127 Ind. 369; Elliott Eoads and Streets, p. 
566 and cases. 

No exclusive privileg'e in street. — In an action against a street railway company to 
recover damages on account of an injury to the plaintiff's horses, carriage and harness, 
it was not error for the court to refuse to submit interrogatories to the jury based upon 
the theory that if the plaintiff could have traveled some other street than the one on 
which the accident occurred, and thus have avoided meeting the cars, it was his duty 
to have done so, and his failure to do so was such negligence as to preclude a recovery. 
Muncie, etc., E. Co. v. Maynard, 5 App. 372, 378. 

Care required by company. — An instruction to the jury in such action that the 
servants of the company were not required to stop their train unless it was necessary 
to do so to avoid the injury, but if they could see that a collison was inevitable or rea- 
sonably probable, then they should make all reasonable effort to avoid the injury, cor- 
rectly stated the rule of law as to the degree of care required of the defendant. Those 
in charge of an engine upon a street car track upon seeing a team of horses near the 
track showing signs of fright must, in order to relieve the company from liability, heed 
the danger, slacken the speed, and, if necessary to avoid injury, stop the train. 
Muncie, etc., E. Co. v. Maynard, 5 App. 372, 383. 

Street railway company— Common carrier— Skill and care required.— A street 
railway company is a common carrier of passengers, with duties and responsibilities 
analogous to those of a railway company, and is required to exercise the highest degree 
of care and skill in the transportation of passengers, by providing suitable tracks, roll- 
ing stock, etc., keeping pace with science, art and modern improvements in their appli- 
cation to such transportation. Citizens', etc., E. Co. v. Twiname, 111 Ind. 587. 

Defective tracks. — A street railway company is guilty of negligence when it attempts 
to run its cars over a palpably defective place in its track, wdien by the use of such in- 
creased vigilance and care as are practicably available the safety of its passengers is 
not well assured. Citizens', etc., E. Co. v. Twiname, 111 Ind. 587. 

Implied invitation to passeng-ers- Contributory negligence.— When a duly 
equipped car is placed upon a street railway track, under circumstances indicating that 
it is ready to receive passengers and about to proceed on its way for their transporta- 
tion, an invitation to all suitable persons to enter and become passengers is implied, 
and the acceptance of such an invitation can not be held to be contributory negligence 
on the part of a passenger, although he may have knowledge that portions of the track 
over which he is to be carried are defective, he having a right to presume that all nec- 
essary precautions have been taken to secure his safety. Citizens', etc., Co. v. Tr^-iname, 
111 Ind. 587. 



§ 218 CITIES. 272 

Injury— Care required. — It is the duty of a street railway company to run its cars 
with a due regard to the rights of infirm persons, aged persons, and children of tender 
years, for all classes of citizens have a right to freely use the public streets ; and, as this 
is the duty of the company, it is liable if it does not use due care to prevent injury to the 
various classes of persons that may lawfully use the streets. Citizens', etc., R. Co. v. 
Stoddard, 10 App. 278, 283. See Citizens', etc., Co. v. Carey, 56 Ind. 396; 3 Elliott 
Railroads, § 1094. 

Rules as to boarding* cars. — The rules governing the boarding of steam railway cars 
do not apply in all their vigor to street railways. The motor power used does not affect 
the rules. Citizens', etc., R. Co. v. Spahr, 7 App. 23, 26; Connor v. Citizens', etc., R. 
Co., 105 Ind. 62. 

Boarding' car, when neg-lig^ence.— Whether a person in boarding a moving street 
car is guilty of negligence must depend upon the circumstances of each particular case ; 
and such can not be negligence per se unless the act be such that, under circumstances, 
but one conclusion can be arrived at, and that of negligence. Citizens', etc., R. Co. v. 
Spahr, 7 App. 23, 31 ; Connor v. Citizens', etc., R. Co., 105 Ind. 62. 

Habit or custom — Incompetent proof. — It was not error to refuse to allow a witness 
to testify that it was not the custom, and that people were not in the habit of trying to 
get on cars at the rate of speed that the car w^as going, such testimony being not that of 
a fact, but a conclusion. Citizens', etc., R. Co. v. Spahr, 7 App. 23, 28. 

Remaining" upon platform. — It is not contributory negligence per se for a passenger 
to remain upon the platform of a street railway car. It is a question for the jury. Ma- 
rion, etc., R. Co. V. Shaffer, 9 App. 486; Terre Haute, etc., R. Co. v. Lauer, 21 App. 
466. 

Stopping" and starting* car. — It is the duty of a street railway company, before re- 
starting its car, to see and know that no passenger is in the act of alighting, and the 
fact that a car was stopped a reasonable length of time, or that the driver supposed the 
passengers had alighted, does not relieve it from liability for injuries to a passenger 
attempting to alight, caused by the starting of the car. Anderson v. Citizens', etc., R. 
Co., 12 App. 194. 

Plaintiff, while riding on defendant's street car, gave a signal to the motorman to 
stop. When the car had almost come to a stand, she stepped on the platform and gave 
another signal, which she thought was a signal to stop. The car immediately started 
forward with a jerk, and plaintiff was thrown therefrom and injured. It was not shown 
that the motorman or conductor knew of her danger, or that the second signal was nec- 
essary, or that it was the signal to stop, and not the regular signal for starting the car. 
Plaintiff's injuries were caused by her own act. Sirk v. Marion, etc., R. Co., 11 App. 
680. 

Railroad crossing"— Care required— Instruction. — The same rule of care governing 
travelers approaching railroad crossings does not apply to those approaching street rail- 
way crossings. 

Where, in such an action, the evidence clearly showed that the plaintiff made eveiy 
effort to avoid the collision, but on account of the frightened condition of the horses 
he could not control them, an instruction requested by the defendant was properly re- 
fused to the effect that if the plaintiff could have seen the car approaching and he 
did not escape, and his property was injured, the law presumes either that he did not 
look, or if he did look, that he did not heed what he saw, and that such conduct was 
negligence in itself. Muncie, etc., R. Co. v. Maynard, 5 App. 372, 382. 

It is not negligence for one driving along a street on which there is a car track to 
drive his vehicle in the tracks, where the public have been in the habit of using the 
tracks for the same purpose, and the street outside of the tracks is torn up for repairs. 
Citizens', etc., R. Co. v. Lowe, 12 App. 47. 



273 IMPROVEMENT OF STREETS. § 219 

Complaint— Averment of neg'lig'ence. — In an action against a street railroad com- 
pany for personal injuries, a complaint which charges that the defendant's servant 
"negligently ran said car against the wagon," is not demurrable for want of an allega- 
tion of negligence. Citizens', etc., R. Co. v. Lowe, 12 App. 47. 

Special verdict— Contributory negiig'ence.— When a special verdict finds that a pas- 
senger on a street car going south upon a street upon which there are double tracks gets off 
the car at midnight before it stops at a crossing, and walks rapidly across the tracks be- 
hind the car from which he alighted against a car approaching upon the other tracks from 
the opposite direction, said approaching car being lighted with electricity with the 
headlight burning, the view between the tracks looking to the south being unob- 
structed, but does not find that plaintiff w^as free from fault, the court can not say as 
matter of law that the conduct of the passenger was that of a reasonably prudent per- 
son. Stowers v. Citizens, etc., R. Co., 21 App. 434. 

Neg'lig'ence, sufficient finding* of. — In an action against an electric railroad com- 
pany, for wrongful death by a collision, it appeared that deceased was driving along the 
track ; that when the wagon was about three hundred feet from a car approaching on 
another track the horse became frightened, and jumped across the track ; and before 
the car struck the wagon the horse turned around on the track, and that the motorman 
kept ringing the gong until within thirty feet of the wagon. The evidence was suf- 
ficient to support a finding that the motorman could have avoided the collision. Citi- 
zens', etc., R. Co. V. Lowe, 12 App. 47. 

Neg'lig'ence, question for the jury.— Plaintiff was driving a two-year-old colt when 
the colhsion with defendant's street car occurred. On the night of the accident, plaint- 
iff drove the animal past defendant's cars several times and left it standing near de- 
fendant's tracks, and it was not frightened. After plaintiff started home, and while a 
car was a square distant, the horse became frightened, and plaintiff had no opportunity 
to turn off the street, but kept at the edge of the street, and, when the car was within 
forty feet, the horse attempted to cross the track. At the point where the accident oc- 
curred, there was a light shining across the street, and the motorman might, in the ex- 
ercise of ordinary care, have seen plaintiff when he and plaintiff were a square apart, 
but, instead of slackening speed, he drove the car along at the rate of eight miles an 
hour. The questions whether defendant was negligent, and whether plaintiff' contrib- 
uted to the injury, were for the jury. Marion, etc., R. Co. v. Carr, 10 App. 200, 205. 

Rig-ht in streets — Operation — Frig'htening' horses.— Duly licensed street car compa- 
nies have as much right to run their cars in the streets as others have to drive through 
them with their horses and vehicles ; and such companies are not ordinarily liable for 
horses taking fright at the usual appearance or noise of the cars while being operated in 
a proper and usual manner. Terre Haute, etc., R. Co. v. Yant, 21 App. 486. 

Motorman — Duty. — A motorman operating a car in a lawful nmnner is not under ob- 
ligation to at once stop or slacken the speed of the car at the sight of a frightened horse 
on the public way adjacent to the track, held by his owner in a manner from which it 
might fairly be supposed he would be able to control him. In such case the motor- 
man is not bound to stop his car or slacken the speed thereof until he sees some evi- 
dence that the driver will not be able to control the horse. Terre Haute, etc., R. Co. v. 
Yant, 21 App. 486. 

219. Petition for street improvements. — 6S. When the owners of 
two-thirds of the whole line of lots or parts of lots (and measuring 
only the front line of such lots as belong to persons resident in 
such city) bordering on any street or alley, consisting of one whole 
square between any two streets crossing the same; or, if the common 

CiT. AND To.— 18 



§ 219 CITIES. 274 

council deem it expedient, for any reasonable distance upon any 
street or alley less than one whole square or block, — shall petition the 
common council to have the sidewalks graded and paved, or the 
whole width of the street graded and paved, or for either kind of im- 
provement; or for lighting such street according to the general plan of 
such improvement in said city, — the common council may cause the 
same to be done, by contract given to the best bidder, after advertising 
to receive proposals therefor. And the common council shall have 
power to compel the owner or owners of any lot or a part of a lot on 
any street or alley, or upon any part of any street or alley, to repair 
the sidewalks in front of their respective lots or parts of lots; and in 
case the owner or owners of any lot or part of a lot on any street or 
alley or any part thereof, fail or refuse to repair the sidewalks in front 
of their lots, the common council may cause such repairs to be made 
by the street commissioner, at the cost and expense of the owner or 
owners of such lot or lots; and the city shall have a lien on such lot 
or lots for the reimbursement to her of the cost of such improvement. 
And the common council are hereby invested with full powers to pass 
by-laws and ordinances providing how and in what manner the re- 
pairs shall be made, and in what manner the same shall be assessed 
and collected from such owner or owners, and the manner in which 
the lien of the city for the expense incurred by her may be enforced 
against the lot or lots of such owner or owners: Provided, That any 
incorporated city having a population less than ten thousand ma}^, by 
a two-thirds vote of all the members of the common council, cause 
plank or gravel walks, of such dimensions as such council may deter- 
mine, to be constructed, either upon the natural grade of the sidewalks 
therein, or any modification thereof established by such council, and 
the costs and expenses of any such improvements, or repairs thereto, 
shall be a lien upon the real estate fronting thereon, and shall be 
assessed and collected in the same manner as now prescribed by law for 
collecting assessments for improving streets, alleys, and sidewalks: 
Provided, further, That when the state of Indiana is the owner of 
property on or along the street or streets proposed to be improved as 
hereinbefore provided, the common council shall not contract for the 
execution of said improvements involving the state in any liability, 
without first obtaining the written consent and approval of the auditor 
and treasurer of state, but such city may make such improvercbents at 
her own expense. R. S. 1894, § 3624. 

Bee post, §§1107-1135. 

Statute construed. — This section and succeeding sections apply only where a city 
seeks to improve its streets at the expense of the abutting owners, and do not limit the 
general powers over streets conferred by other provisions of law ; and where a city, in 
the exercise of its general powers and at the expense of its treasury, grades a street, it 
is not liable to adjoining owners for consequential damages merely because it fails to 
comply with the requirements of this and the succeeding sections. City of Aurora v. 
Fox, 78 Ind. 1; Cummins v. City of Seymour, 79 Ind. 491. 

The power to make street improvements, to be paid for out of the city's or town's treas- 
ury, is Uberally construed; and it is the exercise of a corporation function that is im- 



iO 



IMPKOVEMENT OF STKEETS. § 219 



plied from the general words of incorporation. Town of Marion v. Skillman, 127 Ind. 
130. 

Petition. — Any agreement or combination among parties petitioning for the improve- 
ment of a street, by which a few individuals, desirous of causing the improvement to be 
made, procured the signatures of others to the petition by paying, or agreeing to pay, a 
consideration therefor, either directly or indirectly, is a fraud on the law and contrary 
to public policy, and is void. Maguire v. Smock, 42 Ind. 1. 

Persons signing a petition for the improvement of a street may, by a remonstrance, 
withdraw their names from such petition. Noble v. City of Vincennes, 42 Ind. 125. 

Improvement without petition.— Upon a two-thirds vote of the common council im- 
provements may be made without petition. City of Lafayette v. Fowler, 34 Ind. 140; 
Yeakel v. City of Lafayette, 48 Ind. 116; Moberry v. City of Jeffersonville, 38 Ind. 198; 
Baker v. Tobin, 40 Ind. 310; City of Indianapolis v. Imberry, 17 Ind. 175; Pvay v. City 
of Jeffersonville, 90 Ind. 567. 

Improvements without letting- contract.— A municipal corporation may construct 
ordinary public works through its officers and servants in cases where the whole ex- 
pense is to be paid out of the corporate treasury, and is not bound to let such work out 
to independent contractors. City of Aurora v. Fox, 78 Ind. 1, 4; Cummins v. City of 
Seymour, 79 Ind. 491, 493; Platter v. City of Seymour, 86 Ind. 323, 324. 

Order for improvement — Proceeding's required. — The improvement may be under 
an ordinance, a motion or resolution, but whatever mode may be adopted, it must com- 
ply mth the requirements of the charter. It must be in writing, and where there is a 
petition for the improvement it must be passed by a vote of a majority of the council, or 
by two-thirds vote where there is no petition. The order made must be entered of 
record, together ^dth the vote on its passage, showing that it was adopted by the requi- 
site vote, and this order must be followed by an advertisement for proposals to do the 
work, and there must be a written contract made and reported to and approved by the 
common council. City of Delphi v. Evans, 36 Ind. 90; City of Indianapolis v. Imberry, 
17 Ind. 175; Merrill v. Abbott, 62 Ind. 549; Smith v. Duncan, 77 Ind. 92; Taber v. 
Grafmiller, 109 Ind. 206; Pay v. City of Jeffersonville, 90 Ind. 567; Wren v. City of 
Indianapolis, 96 Ind. 206; Baker v. Tobin, 40 Ind. 310; De Puy v. City of Wabash, 133 
Ind. 336 ; McEneney v. Sullivan, 125 Ind. 407 ; City of Terre Haute v. Turner, 36 Ind. 
522; EUiott Roads and Streets, p. 349. 

Ordinance, when sufficient.— An ordinance for a street improvement must specify 
the nature and* plan of the work in such manner as to afford a basis for letting the con- 
tract. An order which does not specify of what wood the blocks shall be made, how^ 
they shall be laid, and to what grade, but leaves these and like particulars to the city 
engineer, is insufficient, and will not warrant a precept for the enforcement of an assess- 
ment. Such delegation of the powers and duties of the council to the engineer is not 
permissible. Smith v. Duncan, 77 Ind. 92, 95 ; Merrill v. Abbott, 62 Ind. 549 ; Taber v. 
Grafmiller, 109 Ind. 206. See Martindale v. Palmer, 52 Ind. 411. 

An ordinance providing that a street shall be "improved by graveling in the street, 
brick sidewalks and paved gutters," according to specifications to be prepared by the 
city civil engineer, and providing for the advertisement for bids and the assessment of 
abutting property, is not void for uncertainty, but is sufficient to authorize the letting of 
a contract for the work. Ross v. Stackhouse, 114 Ind. 200, 207. 

Resolution, when sufficient.— A resolution adopted by the common council of a city 
authorizing the improvement of a sidewalk is sufficient if it provides that the improve- 
ment shall be of a designated character, and contains enough to constitute the basis for 
letting the contract, without specifying with particularity of detail what such improve- 
ment shall be. Taber v. Grafmiller, 109 Ind. 206, 207. 

A resolution of the common council providing for the improvement of a street is suf- 
ficient, if it gives a general direction as to the character of the improvement, without 
describing it in detail. Taber v. Ferguson, 109 Ind. 227, 234. 



§ 219 CITIES. 276 

For an order held insufficient see Merrill v. Abbott, 62 Ind. 549. 

The common council of a city may, under E. S. 1894, § 4289 {post, § 1108), declare in the 
same resolution the necessity for a proposed street improvement, and order the same to 
be made. It is not necessary under said section to first pass a resolution declaring the 
necessity of su-ch improvement, and then afford those interested an opportunity to be 
heard as to the necessity for the construction of said work before a valid order can be 
made for such improvements. It is a substantial compliance with the requirements of 
the statute to embrace both matters in one resolution, and the doing so will not render 
the proceedings void. Quill v. City of Indianapolis, 124 Ind. 292, 295 ; Barber, etc., Co. 
v. Edgerton, 125 Ind. 455, 463. 

Sidewalks. — The word ' 'street' ' is generic and embraces sidewalks, and under authority 
to improve streets a municipal corporation may improve sidewalks. Taber v. Graf- 
miller, 109 Ind. 206. 

Order for not a judg'ment. — An order entered by the common council of a city to 
make a particular improvement is not in the nature of a judgment. It is a mere pre- 
liminary step, looking to a public improvement to be made or not, as the common coun- 
cil in its discretion may determine, from which it may recede at any time before the 
contract for the improvement is concluded. Barber, etc., Co. v. Edgerton, 125 Ind. 455, 
462. 

Owners charg'ed with notice. — The statute for the incorporation of cities makes pro- 
vision for the publication of only such ordinances as are penal in their character. It is 
the duty of residents of the city to take notice of the acts and proceedings of the com- 
mon council relating to public matters, and property-holders knowing that improve- 
ments are being made must inform themselves as to the authority by which it is done. 
City of Elkhart v. Wickwire, 121 Ind. 331, 340. 

Informalities— EvansYille charter.— The provision in the former charter of the city of 
Evansville, that mere informalities of the common council in ordering the improvement 
or in making the assessment or apportioning the cost shall not be available to the prop- 
erty owner as a defense, does not deprive him of any substantial right, but refers to ob- 
jections which do not afiect the merits of the proceedings. Garvin v. Daussman, 114 
Ind. 429, 437. 

Adoption of plan. — Where the common council of a city directed that a plan for the 
improvement of S. street be prepared, which was accordingly done and reported, and 
the action of the council thereon appeared on its record thus : ' 'The survey and plan 
for the improvement of S. street by J. is accepted," an adoption of the plan was suffi- 
ciently shown. City of Aurora v. Fox, 78 Ind. 1, 10. 

Plans— Specifications— Presumption.— It is the statutory duty of the city civil en- 
gineer to prepare plans and specifications of proposed street improvements, and it will 
be presumed that he prepares them in proper time and in conformity to the ordinances. 
Smith V. Duncan, 77 Ind. 92, questioned. Taber v. Grafmiller, 109 Ind. 206, 208. 

Are competent evidence. — The plans and specifications prepared by the city engineer 
are competent evidence in a suit to collect a street assessment. Taber v. Ferguson, 109 
Ind. 227, 234. 

Xotice inviting- proposals— Bids. — If the common council of a city direct that notices 
inviting proposals for the improvement of a street shall be published in two newspapers, 
publication in one is not sufficient. Taber v. Ferguson, 109 Ind. 227. 

Notice of letting*— Standing* by— Estoppel, — Where it appears that the common 
council of a city has given any sort of notice of the letting of a contract for the improve- 
ment of a street, its sufficiency can not be inquired into after the work has been done, 
under color of the proceedings, with the acquiescence of the parties benefited. Taber 
V. Ferguson, 109 Ind. 227, 232; Eoss v. Stackhouse, 114 Ind. 200, 205; Wiles v. Hoss, 
114 Ind. 371, 380; Clements v. Lee, 114 Ind. 397, 399. 

Estoppel of lot-owner. — Where a common council acquires jurisdiction and makes a 



277 IMPKOVEMENT OF STREETS. § 219 

contract for a street improvement, a party benefited, who stands by, without objecting, 
until the work is completed, is liable for the amount assessed against him as benefits. 
Jenkins v. Stetler, 118 Ind. 275, 277; De Puy v. City of Wabash, 133 Ind. 336, 339; El- 
liott Roads and Streets, p. 420. 

Objections Avlien to be made.— If the property owner denies the powder of the city to 
order the improvement and make the contract, he must test the question before the 
work is done. City of Logansport v. Uhl, 99 Ind. 531, 541 ; Taber v. Ferguson, 109 Ind. 
227; Palmer v. Stumph, 29 Ind. 329; Hellenkamp v. City of Lafayette, 30 Ind. 192; 
Busenbark v. Clements, App, Ct., April 25, 1899. 

The letting of contracts for the work must be properly advertised. Kretsch v. Helm, 
45 Ind. 438; Moberry v. City of Jeffersonville, 38 Ind. 199; McEwen v. Gilker, 38 Ind. 
233; Taber v. Ferguson, 109 Ind. 227. See Martindale v. Palmer, 52 Ind. 411. 

As to what is and is not a sufficient notice of the letting of a contract, see Case v. 
Fowler, 6o Ind. 29; Case v. Johnson, 70 Ind. 31; Yeakel v. City of Lafayette, 48 Ind. 
116; City of Logansport v. Puterbaugh, 46 Ind. 550; Moberry v. City of Jeffersonville, 
38 Ind. 199. 

As to sufficiency of notice, including notice to non-residents, under the special char- 
ter of the town of Huntington, see Loughridge v. City of Huntington, 66 Ind. 253. 

Letting" bids — Po^ver to choose. — The common council has the power to choose be- 
tween bidders for street work, and when it has done so its decision is final. Boyd v. 
Murphy, 127 Ind. 174, 177; Elliott Roads and Streets, pp. 441, 442. 

Presumption of g'ood faith. — It will be presumed by the courts that the council, in 
letting a bid, acted in good faith and lor the best interests of both the city and the 
property-holders, and that it exercised its discretionary power wisely. Boyd v. Mur- 
phy, 127 Ind. 174, 177. 

Bids and additional work. — After bids are received the council may let the contract 
to the highest bidder, upon condition that he perform extra street improvement work 
not specified in the improvement ordinance and advertisement for bids, even though 
such extra work has never been ordered by the council by any resolution or ordinance, 
and may assess abutting property according to the rate imposed upon it by such bid. 
Boyd V. Murphy, 127 Ind. 174, 177. 

Bids — Rig'ht to reconsider. — The common council of a city, which has rejected all 
bids received in pursuance of due notice of the letting of a contract for a street improve- 
ment, may, at a subsequent meeting, without a re-adveitisement for bids, reconsider the 
vote of rejection and award the contract to one of the original bidders. Ross v. Stack- 
house, 114 Ind. 200, 203. 

Contracts, how executed. — Bids for a street improvement must be reported to the 
council, and that body must award the contract, which must be in writing and filed with 
the proper officer. Budd v. Kraus, 79 Ind. 137, 139; City of Delphi v. Evans, 36 Ind. 
90; City of Indianapolis v. Imberry, 17 Ind. 175; City of Logansport v. Blakemore, 17 
Ind. 318; Moberry v. City of Jeffersonville, 38 Ind. 198. 

Officer can not contract with city. — An officer of a city can not enter into a contract 
with the city for the improvement of a street. City of Ft. Wayne v. Rosenthal, 75 Ind. 
156, 160; Case v. Johnson, 91 Ind. 477, 489; Benton v. Hamilton, 110 Ind. 294; City of 
Brazil v. McBride, 69 Ind. 244. 

City may chang-e contract, — The governing body of a city may, within reasonable 
limits, modify and change contracts for the improvement of streets. Sims v. Hines, 
121 Ind. 534, 540; Board v. Silvers, 22 Ind. 491; Hellenkamp v. City of Lafayette, 30 
Ind. 192. 

After an order and contract is made for the improvement, and it is determined what 
property will be benefited thereby, the line of improvement can not be extended and 
other property charged with the expense thereof. City of Columbus v. Storey, 35 Ind. 
97. 

Time to complete— Extension.— In the absense of fraud, the time for the completion 



§ 219 CITIES. 278 

of a street improvement under a contract may be lawfully extended by a vote of the 
common council. Jenkins v. Stetler, 118 Ind.275, 278; Terre Haute, etc., R. Co. v. 
Nelson, 130 Ind. 258, 260; City of Lafayette v. Fowler, 34 Ind. 140. 

A provision in a contract for a street improvement, providing for a forfeiture for fail- 
ing to complete the work in a given time, may be enforced or not by the city at its 
option, and the property owner can not complain. Gulick v. Connely, 42 Ind. 134. 

Leng'tli of improvement.— A street may be improved for a greater length than one 
whole square, or block, under one order and contract. City of Lafayette v. Fowler, 34 
Ind. 140. 

Council and mayor— Relative powers.— The common council of a city alone has 
power to obligate a city, and the mayor of the city, in executing contracts, acts simply 
as the instrument or agent of the council. He can only bind the city according to the 
authority given him, and without such authority he can not enter into a contract for 
paving a street whereby a contractor can acquire a lien on abutting property. State v. 
City of Michigan City, 138 Ind. 455. 

Assig'nment of contracts. — If a contract for an improvement provides that it shall 
not be assigned, an assignee can not collect assessments made for the improvements. 
Deffenbaugh v. Foster, 40 Ind. 382. 

It the city council ratifies the assignment of a contract, it is the same aa if assent had 
been originally given to the assignment. Taber v. Ferguson, 109 Ind. 227 ; Sims v. 
Hines, 121 Ind. 534. 

Contract assig^ned and recognized.— Where the transcript affirmatively shows that 
the assignment of a contract for a street improvement was recognized and acted upon 
as valid by the common council, it will be sufficient, although there was no formal or- 
der entered approving the assignment. Sims v. Hines, 121 Ind. 534, 539. 

Invalid contract. — If a contract for a street improvement is invalid, neither the city 
nor property owner is liable to the contractor for the expense of the improvement. A 
person contracting with a city, for the improvement of a street in such city, is bound to 
take notice of the provisions of the general law regulating such improvements ; and must 
also ascertain whether the common council have so conducted the letting as to render 
the property holders liable for the improvement, and whether the street ordered im- 
proved is within the city limits, etc. Johnson v. City of Indianapolis, 16 Ind. 227 ; 
Newman v. Sylvester, 42 Ind. 106 ; Clements v. Lee, 114 Ind. 397 ; State v. City of Mich- 
igan City, 138 Ind. 455. 

It is the duty of the contractor to inform himself as to an ordinance on which his con- 
tract is based and which is to form the basis of his claim. State v. City of Michigan 
City, 138 Ind. 455. 

If a city council acts beyond its jurisdiction in making a contract for street improve- 
ment, the members of the council are not personally liable to the contractor. Newman 
V. Sylvester, 42 Ind. 106; Clements v. Lee, 114 Ind. 397. 

A city does not become liable for the expense of a street improvement because the 
city officers do not perform their duties. The remedy in such case is by mandate to 
compel the officers to do their duty. City of Greencastle v. Allen, 43 Ind. 346. 

It is not necessary that the contract should literally follow the ordinance, it being suf- 
ficient that the pavement contracted for corresponded in kind with that provided for in 
the ordinance. Martindale v. Palmer, 52 Ind. 411. 

Lighting" streets— Statute construed.— In this section the words, "for lighting such 
street according to the general plan of such improvement in said city," embraces the 
street fixtures necessary for the purpose referred to, including the pipes and lamp posts ; 
and in the twenty-eighth clause of the fifty-third section of this statute, the words, "the 
expense of lighting any street," refer only to the expense of lighting after the fixtures 
have been put up. In the former case, the expense can not properly be assessed upon 
real property in proportion to its appraised value. Nelson v. City of LaPorte, 33 Ind. 
258. 



279 IMPROVEMENT OF STREETS. § 220 

Surplus earth— Abutting' owner's rig'Iit to.— The surplus earth, gravel and other 
materials excavated from the street in its improvement are the property of the abutting 
owner, subject to the right of the city to use them in the improvement of other streets 
under the same general plan of improvement. The abutting owner may remove the 
same, but can not require the city to deliver them to him at such place as he may desig- 
nate. If the owner does not remove the surplus materials within a reasonable time, 
he is deemed to have abandoned the same. Haas v. City of Evansville, 20 App. 
482. 

[Acts 1881, S., p. 391. In force April 14, 1881.] 

220. Cost, how apportioned. — 69. In all contracts specified in the 
last preceding section, the cost thereof shall be estimated according to 
the whole length of the street or alley, or the part thereof to be im- 
proved, per running foot; and the city shall be liable to the contractor 
for so much thereof only as is occupied by public grounds of the city 
bordering thereon and the crossing of streets and alleys, and the 
owners of the lots bordering on such street or alley or the part thereof 
to be improved shall be liable to the contractor for their proportion 
of the cost, in the ratio of the front lines of the lots owned by them to 
the whole improved line; and in making the assessments against 
such owners for the improvement, the ground shall be assessed across 
the ground fronting or immediately abutting on such improvement, 
back to the distance of fifty feet from such front line, whether such 
ground be subdivided by platting or conveyance or in any other manner. 
All assessments where the ground to be assessed is held by more than 
one owner shall be in proportion of the fair cash value of each parcel, 
less the value of improvements, to be determined by the city engi- 
neer; and in case of a sale upon a precept, each parcel shall be offered 
and sold separately, beginning with the front parcel, and so on to the 
last or rear parcel: Provided, That when the owner of any lot shall 
have made any improvement in front of his lot in accordance with 
the general plan for the improvement of such street, and under the 
direction of the city engineer, he shall be entitled to a reasonable 
allowance therefor upon his proportion of the cost of such improve- 
ment, which reasonable allowance shall be determined by the said en- 
gineer: Provided, That all contracts made by any city, or by any offi- 
cer under the authority thereof, for public improvements or other- 
wise, in the profits whereof any officer of such city shall be interested, 
directly or indirectly, shall be void. R. S. 1894, § 3625. 

Constitutional. — This section is held not unconstitutional because it authorizes the 
assessment of lands not bordering on the street to be improved, the same being within 
fifty feet of such improvement ; nor because it makes no provision for the assessment 
of benefits and damages occasioned by such improvements. Ray v. City of Jeflierson- 
ville, 90 Ind. 567; Bass v. City of Ft. Wayne, 121 Ind. 389. 

Repealed, by implication.— The body of this section, relating to assessments for 
street improvements, was repealed by implication by the succeeding section, act of 
April 13, 1885 (R. S. 1894, § 3626), saving only contracts entered into before the passage 
of the act. Crowell v. Jaqua, 114 Ind. 246, 247; City of Evansville v. Summers, 108 
Ind. 189, 194; City of Frankfort v. Ross, 128 Ind. 438, 440; Van Sickle v. Belknap. 129 
Ind. 558; Reeves v. Grottendick, 131 Ind. 107, 116. 



§ 221 CITIES. 280 

This section is not open to the objection of cutting off all right of appeal from the ap- 
portionment of the assessment by the engineer. Appeal is given by a subsequent sec- 
tion. Eay V. aty of Jeffersonville, 90 Ind. 567. 

Assessments. — Under this section, an assessment for street improvements can only 
be made on property abutting on the street, and extending back fifty feet from the front 
line. Niklaus v. Conkling, 118 Ind. 289. 

Assessment — Engineer. — The assessment required to be made by the city engineer 
under this section is a ministerial act which the legislature had the power to impose on 
such ofiicer, and it is not his act which deprives the lot-owner of his property in event 
of sale. Smith V. Duncan, 77 Ind. 92, distinguished; Ray v. City of Jeffersonville, 90 
Ind. 567, 572; Taber v. Grafmiller, 109 Ind. 206, 208; Eeeves v. Grottendick, 131 Ind. 
107, 113; aty of Terre Haute v. Mack, 139 Ind. 99. 

Assessment lien— When it attaches. — Although the work under a contract for the 
improvement of a street be completed, yet the lien therefor does not attach to the prop- 
erty adjoining until the estimate is made ; and the lien does not relate back to the time 
when the work was conmienced. Jones v. Schulmeyer, 39 Ind. 119 ; Langsdale v. Mch- 
laus, 38 Ind. 289; Van Sickle v. Belknap, 129 Ind. 558; Peru, etc., R. Co. v. Hanna, 68 
Ind. 562. 

The estimate constitutes the assessment; the assessment, when valid, creates the lien. 
There can be no lien in the absence of an assessment, and no assessment mthout a 
sufficient description of the property assessed. Peru, etc., R. Co. v. Hanna, 68 Ind. 562. 

The lien attaches at the time fixed by the statute. Elliott Roads and Streets, pp. 432^ 
433. 

Liability of city. — A city is not liable for the cost of a culvert constructed presumably 
under R. S. 1894, § 3625, but reported as "city extra" work, but is only liable for im- 
provements on which public grounds of the city border and for the street and alley 
crossings. City of New Albany v. Conger, 18 App. 230. 

"VMien the statute and contract thereunder provide for the payment of an improve- 
ment from assessments against property benefited, the contractor must look to the 
assessments, and to them alone, for his compensation, and if they fail, without derehc- 
tion or wrong on the part of the city, the city can not be charged as debtor. Peake v» 
New Orleans, 139 U. S. 342. 

[Acts 1885, p. 207. In force April 13, 1885.] 

221. Apportionment of cost of improyement. — 1. That in all 
contracts heretofore made or which may be hereafter made by order 
and under the direction of the common council of any city in this 
state for the grading, paving, guttering and improvement of any 
street or alley in such city, the cost of such improvements shall be 
estimated according to the whole length of the street or alley, or the 
part thereof to be improved per running foot; and the city shall be 
liable to the contractor for so much thereof only as is occupied by 
public grounds of the city bordering thereon, and the crossings of 
streets and alleys; and the owners of lots bordering on such street or 
alley, or the part thereof to be improved, shall be liable to the con- 
tractor for their proportion of the cost, in the ratio of the front lines 
of lots owned by them to the whole improved line; and in all cases 
where such improvement shall have been made, or may hereafter be 
made on any street or alley running along or through any unplatted 
lands lying within the corporate limits of such city, the cost of such 
improvements shall be estimated according to the whole length of the 



281 • IMPROVEMENT OF STREETS. § 221 

street or alley or the part thereof to be improved per running -foot, 
and the owners of such unplatted lands bordering on such street or 
alley or the part thereof to be improved shall be liable to the contractor 
for their proportion of the cost, in the ratio of the front lines of such 
unplatted lands owned by them to the whole improved line; and in 
making the assessment against such owners for the improvement, such 
unplatted lands shall be assessed across the ground fronting or imme- 
diately abutting on such improvement back to the distance of one 
hundred and fifty feet from such front line, and the contractor shall 
have a lien thereon for the value of such improvements: Provided, 
however, That where such land is subdivided, the land lying immedi- 
ately upon and adjacent to the line of the improvement shall be pri- 
marily liable to and for the whole cost of the improvement, and should 
that prove insufficient to pay such cost, then the second parcel and 
other parcels in their order to the rear parcel of said one hundred and 
fifty feet shall be liable in their order; and if the owners of such un- 
platted lands fail to pay for such improvements within sixty days after 
the completion of the same, such contractor may enforce his said lien 
in the circuit court of the county where such city is situated, and the 
court shall ascertain the value of such improvements according to 
the contract price therefor and render a judgment for the amount 
thereof against the owner of such lands, and direct that such lands, or 
so much as may be necessary, be sold by the sheriff upon an order of 
sale issued upon such judgment, without relief from valuation or ap- 
praisement laws, and the sheriff shall issue to the purchaser a certifi- 
cate of sale therefor, which shall entitle the holder thereof, his heirs 
or assigns, to a deed therefor within one year from the date of such 
sale: Provided, That the owner of such lands may redeem from any 
such sale under the provisions of the law now in force concerning the 
redemption of lands sold upon execution and foreclosure of mortgages. 
R. S. 1894, § 3626. 

Eepeal. — This section repeals the body of the next preceding section except as to 
contracts made before the passage of this section. Crowell v. Jaqua, 114 Ind. 246; 
Keeves v. Grottendick, 131 Ind. 107. 

This section does not repeal the second succeeding section, but only modifies the same 
so far as to require that assessments against unplatted land shall be enforced by pro- 
ceedings in the circuit court, instead of by the issuance of a precept to the city treas- 
urer. For the enforcement of assessments against platted lands within the limits of a 
city, a precept may be issued as heretofore. Crowell v. Jaqua, 114 Ind. 246. 

This section does not enlarge the lien of the contractor where the work was com- 
pleted and sale had prior to the passage of this section. Niklaus v. Conkling, 118 Ind 289. 

This section does not in any manner affect clause 43 of § 53 (ante, § 124) of the gen- 
eral act for the incorporation of cities, relating to the construction of sewers, drains and 
cisterns. City of Elkhart v. Wickwire, 121 Ind. 333. 

Assessments. — The power to assess lands back one hundred and fifty feet only exists 
when there is a tract of unplatted land extending back that distance, but a public high- 
way can not be crossed and lands beyond it assessed, although the same may be within 
one hundred and fifty feet of the street. City of Frankfort v. State, 128 Ind. 438. 

If the estimate of the city civil engineer is adopted and approved by the common 
council, that is a sufiicient assessment; and the fact that the resolution adopting the 
estimate provides that proixn-ty owners who have ptiid part of a former assessment 



§ 221 CITIES. 282 

which has been vacated, shall have credit for such payment, does not impair the effect- 
iveness of such assessment. Eeeves v. Grottendick, 131 Ind. 107. 

Engineer's duties— Estimate.— The engineer is the proper officer to make and certify 
the estimates. Eeeves v. Grottendick, 131 Ind. 107, 113; Taber v. Grafmiller, 109 Ind. 
206; Van Sickle v. Belknap, 129 Ind. 558; Linville v. State, 130 Ind. 210; Ray v. City 
of Jeffersonville, 90 Ind. 567. 

Power to levy an assessment. — A city has no povrer to make an assessment for local 
improvements except' such as is conferred by its charter, and any substantial departure 
from the mode of proceeding prescribed by the statute will vitiate the assessment. 
Churchman V. City of Indianapolis, 110 Ind. 259, 267; Elliott Eoads and Streets, pp. 
S70, 371. 

Authority to levy statutory. — The authority to levy an assessment is purely statu- 
tory, and no other assessment than such as the statute prescribes can be made. Niklaus 
v. Conkling, 118 Ind. 289, 291. 

Power to assess abutting lot-owners with the cost of grading and paving a street does 
not, of itself, authorize a city or town to assess such owners with the cost of repairing 
such street. Town of Marion v. Skillman, 127 Ind. 130, 140. 

Assessment— Construction of statutes.— Statutes conferring power upon municipali- 
ties to make assessments for street improvements must be strictly construed. Mklaus 
V. Conkling, 118 Ind. 289, 291; Town of Marion v. Skillman, 127 Ind. 130; Elliott 
Roads and Streets, pp. 371, 373, 374. 

Improvements reg'arded as benefits. — Assessments for street improvements are up- 
held on the ground that the adjacent property upon which the cost of the improvement 
is assessed is enhanced in value to an amount equal to the sum assessed against it, and 
that the owners have received peculiar benefits which the citizens do not share in com- 
mon. The municipality, as such, is not benefited by the improvement, and there is, 
hence, neither a legal nor moral obUgation to pay. Quill v. City of Indianapolis, 124 
Ind. 292, 299; City of New Albany v. Cook, 29 Ind. 220 ; Barber, etc., Co. v. Edgerton, 
125 Ind. 455 ; Eoss v. Stackhouse, 114 Ind. 200; Lipes v. Hand, 104 Ind. 503, 508; Heick 
V. Voight, 110 Ind. 279; Elliott Roads and Streets, p. 391. 

A statute which authorizes the assessment of abutting property for the cost of a pub- 
lic improvement without reference to special benefits resulting to the property from the 
improvement is void. Norwood v. Baker, 172 U. S. 269 ; 19 Sup. Ct. 187; Loeb v. Trust- 
ees, etc., 91 Fed. Eep. 37. 

Agricultural land— Assessment.— Land within the hmits of a city, although held for 
agricultural purposes, is subject to local assessment for street improvements. Taber v. 
Grafmiller, 109 Ind. 206; Kalbrier v. Leonard, 34 Ind. 497. 

Church property. — Church property is subject to assessment for the improvement of 
a street on which it is situated. Eausch v. Trustees, etc., Christ Church, 107 Ind. 1. 

Public square, — The public square of a county bordering on a street is liable for an 
assessment for the improvement of the street, but such square can not be sold to pay 
such assessment. Lowe v. Board, etc., 94 Ind. 553 ; Board, etc., v. Schrader, 36 Ind. 87 ; 
Westfall V. Hunt, 8 Ind. 174. 

Lands dedicated for park purposes.— ^Vhere a city orders the graveling of a street 
in which are located two strips of land originally dedicated for park purposes, and ac- 
cepted by it as such, the cost of graveling the parks can not be assessed on the abutting 
owners under an ordinance rendering them liable for the improvement, * 'except so 
much thereof as is occupied by the public grounds owned by said city bordering thereon." 
Bennett v. Seibert, 10 App. 369. 

The city, having assumed the expense of graveling the parks, and having ordered the 
improvement on this basis, can not afterwards impose that additional burden on the 
lot-owners. Bennett v. Seibert, 10 App. 369. 

The city is the ''owner" of the land dedicated to park purposes, within the meaning 
of the ordinance excepting abutting owners from liability for graveling so much of the 



283 IMPllOVEMENT OF STREETS. § 222 

street as is "occupied by tlie public grounds owned by the city," though it may not have 
the fee-simpie title thereto. Bennett v. Seibert, 10 App. 369. 

Eailroad rig-Iit of way— Assessment of.— The right of way of a railroad company 
which abuts upon a street may be assessed for the improvement of the street ; also for 
the construction of a sewer. Personal judgment may be rendered for such assessment, 
but the right of way can not be sold therefor. Personal property may be sold. Pitts- 
burg, etc., E. Co. V. Hays, 17 App. 261; Peru, etc., P. Co. v. Hanna, 68 Ind. 562; Indi- 
anapolis, etc., Co. V. Koss, 47 Ind. 25; Lake Erie, etc., P. Co. v. Bowker, 9 App. 428; 
Louisville, etc., P. Co. v. State, 8 App. 377; Louisville, etc., P. Co. v. Boney, 117 Ind. 
501 ; Louisville, etc., P. Co. v. State, 122 Ind. 442 ; 2 Elliott on Railroads, § 786 and cases. 

"When the statute provides for assessing only the property fronting on the street for 
its improvement, property not fronting upon the street can not be assessed for such im- 
provement. City of New Albany v. Cook, 29 Ind. 220. 

Married women. — Coverture is no reason why real estate belonging to a person 
under such disability should not be assessed for its share of the cost of an improvement. 
Ball V. Balfe, 41 Ind. 221. 

Lien of assessment— Unplatted land — Enforcement.— Under this section the lien of 
the assessment on unplatted lands may be enforced by the contractor by foreclosure in 
the circuit court. Van Sickle v. Belknap, 129 Ind. 558; Crowell v. Jaqua, 114 Ind. 246. 
In such action the complaint must aver all the acts done by the municipal officers, and 
all facts essential to show their authority, but it is not necessary to incorporate in the 
complaint, by reference or otherwise, any written instrument except the estimate or 
assessment. Van Sickle v. Belknap, 128 Ind. 558. 

Vacating void assessment — Ke-assessment, — If an assessment is void for not giving 
the name of the owner of the lot assessed, it may be vacated by the common council 
and a new assessment made. A failure to state the name of a lot-owner correctly is 
sufficient to warrant a vacation of the assessment. Reeves v. Grottendick, 131 Ind. 
107. 

Same — Street railway. — Where, by contract between a street railway company and 
a city, it is left to the judgment of the council whether they would assess the cost of 
pavement between the rails against the railway company or against the abutting prop- 
erty, the assessment for the cost between the rails of the street railway can not attach 
to the abutting property when the ordinance directs that it shall be levied against the 
property of the company, and the contractor is sent to it for his pay. The street im- 
provement could only be made on the order of the common council, and the assessment 
for its cost could be directed only against the specific property designated in the ordi- 
nance. State V. City of Michigan City, 138 Ind. 455. 

Opening" street — Improvement proceedings— Appeal from. — Where an appeal is 
taken from proceedings to improve a street, the city is not compelled to stop the work 
while the appeal is pending; and, in such case, if, on appeal, the city prevails, the 
work may be finished under the original proceedings, but if the property owner is suc- 
cessful, and the court decides that there is some irregularity in the proceedings, the 
city may correct the same or begin anew, according to the determination of the court 
on appeal. If, however, the court, on appeal, adjudges the entire proceedings void, 
and no appeal is taken from such judgment, and the city does not proceed anew under 
the statute, it amounts to an abandonment of the appropriation of the land, and the 
title to the property reverts to the owner. Morris v, Watson, 8 App. 1. 

[Acts 1867, p. 33. In force March 14, 1867.] 

222. Payment — Lien — Order withont potition. — 70. AVhen any 
such contract shall have been made, or shall have been heretofore 
made and shall have been in progress of fulfillment, the common 
council shall have power to cause estimates to be made, from time to 



§ 222 CITIES. 284 

time, of the amount of work done by the contractor, and to require 
such amount to be paid to him, deducting a reasonable percentage to 
secure the completion of the contract, until the whole shall be finished, 
and to prescribe the time within which the whole shall be completed; 
and such estimates shall be liens upon the grounds upon which they 
are assessed, to the same extent that taxes are a lien, and shall have 
the same preference over other demands The common council, with 
the concurrence of two-thirds of the members thereof, may order or 
cause any or ail of the improvements mentioned in the preceding sec- 
tion, and repairs of any kind on streets and alleys, to be made in like 
manner, without such petition; and either charge and cause any and 
all of the expenses thereof to be assessed and collected, as hereinafter 
provided, when petition is made, or, if it is deemed just and right by 
the common council, to cause such expenses, or any part thereof, to 
be paid out of the general revenue of the city. R. S. 1894, § 3627. 

Satisfaction of liens, see post, § 1119. 

Estimates — Council — Mandate. — Mandate lies against a city as a corporation at the 
suit of a contractor, to compel the making of correct estimates of work done by him in 
the improvement of its streets, according to terms of his contract, so far as the same 
may be chargeable to abutting real estate, and neither the city engineer nor any other 
city officer is a necessary party. Wren v. City of Indianapolis, 96 Ind. 206, 213; City 
of Greenfield v. State, 113 Ind. 597 ; Chapin v. Osborn, 29 Ind. 99. 

In such case the city can not object, on demurrer to the complaint, that it does not 
show that the letting of the work was properly advertised, or that a grade was fixed 
by the ordinance providing for the improvement, or that the work was not finished 
according to contract, the city's fault preventing; and where it was averred that the 
ordinance was passed by a unanimous vote of the council, it is not necessary, in view 
of the statute (R. S. 1894, § 3627), to allege that there w^as a petition therefor. Wren 
V. City of Indianapohs, 96 Ind. 206, 217. 

In such case mandate will lie against both the municipal corporation and the com- 
mon council, or other officers whose duty it is to act, or against either of them, to 
enforce the performance of a duty incumbent on the corporation. When the action is 
brought against the common council it is properly brought against it as a body and not 
against the members individually. Wren v. City of Indianapolis, 96 Ind. 206; City of 
Greencastle v. Allen, 43 Ind. 347. 

Where a contract, valid on its face, is entered into with the common council of a city 
for the improvement of a street, the expense of which is to be collected from adjacent 
lot-owners, and work is performed under it, it is the duty of the council to order an 
estimate, when applied for, leaving the validity of the contract to be controverted by 
the property owners ; and in case of a refusal to order such estimate, mandamus is an 
appropriate remedy. City of Greenfield v. State, 113 Ind. 597, 599; State v. Haworth, 
122 Ind. 462, 478. 

Estimate — After refusal. — The final order of the common council directing an esti- 
mate is not affected by a previous order refusing to do so. Taber v. Ferguson, 109 Ind. 
227, 233. 

An assessment for a street improvement should show the amount for which each lot 
or piece of land is liable. Balfe v. Johnson, 40 Ind. 235. 

Final estimate— Precept— Presumption.— In the absence of an answer showing that 
the improvement was not completed according to the contract, the court must presume 
that the city engineer, in reporting a final estimate, and the common council, in order- 
ing a precept, did their duty. Jenkins v. Stetier, 118 Ind. 275, 278. 



285 IMPROVEMENT OF STREETS. § 223 

The final estimate and assessment for a street improvement may be amended or cor- 
rect-ed by the common council. Ball v. Balfe, 41 Ind. 221. 

Estimate assigned — Ratification. — A ratification by the common council of an as- 
signment of the estimate by the contractor is equivalent to precedent authority, and 
entitles the assignee to collect the assessments. Taber v. Ferguson, 109 Ind. 227, 233. 

Aec-eptance of work — Effect — Prima facie evidence, — The acceptance of work, by 
the proper city authorities, done under a contract for a street improvement, is only 
prima facie evidence that the work has been done in substantial compliance with the 
terms of the contract. Gulich v. Connely, 42 Ind. 134. See Darnell v. Keller, 18 App. 
103 ; Elliott Eoads and Streets, pp. 416, 417. 

Cost. — The cost of the improvement, whether first or second, is chargeable to the 
adjoining property, or payable out of the general fund of the city, as may be determined 
by city council. City of Lafayette v. Fowler, 34 Ind. 140; Yeakel v. City of Lafayette, 
48 Ind. 116; City of Kokomo v. Mahan, 100 Ind. 242. 

Cost payable out of §*eneral fund. — When the cost of a street improvement is pay- 
able out of the general funds of the city, a strict compliance with the statutes as to let- 
ting contracts where the property owners pay for the improvements is not essential. 
City of Indianapolis v. Mansur, 15 Ind. 112; City of Aurora v. Fox, 78 Ind. 1; Cum- 
mins V. City of Seymour, 79 Ind. 491; Town of Marion v. Skillman, 127 Ind. 130; Plat- 
ter v. City of Seymour, 86 Ind. 323. 

It is not necessary, in order to render the contract valid, that the council should en- 
ter of record its determination, whether the improvement contracted for shall be paid 
for by the property owners, or out of the general fund of the city ; but where the coun- 
cil determines to pay out of the general fund, such an order should be made of record. 
City of Indianapolis v. Amberry, 17 Ind. 175. 

Advance payment— Completion of work by surety.— Under an earlier act for the 
incorporation of cities, where the contractor received from a property owner in advance 
of the estimates the full amount for which the property owner would have been liable 
upon the completion of the improvement, and the contractor then died, leaving the 
work incomplete, and the surety then completed the work upon the contract to save 
himself from liability thereon, he could not recover against the property owner so mak- 
ing the advance payment, as such payment was a satisfaction of the demand. Broker v. 
City of New Albany, 12 Ind. 417. 

223. Payment, how enforced. — 71. In case any of the owners of 
lots or parcels of ground on which such assessments have been made 
shall fail or refuse, for the space of twenty days after the date of the 
estimate, to pay the amount thereof due by such person to such 
contractor, such contractor shall file his affidavit in the clerk's office 
of said city, stating that the whole or some part of said assessment re- 
mains unpaid, showing the amount paid and the amount due; that 
the estimate thereof has been duly made, and that the work estimated 
has been done according to contract. It shall be the duty of the clerk, 
at the next or any subsequent meeting of the common council, to report 
the said affidavit to the council, whose duty it shall be to cause a precept 
to issue for the collection of such assessment, or any unpaid balance 
thereof, which precept shall be signed by the mayor and attested by the 
clerk, and sealed with the seal of said city, and shall set forth the name 
of the person against whom the assessment is made, the description of 
the lot or land on which it is made, the amount of such assessment, and 
the date of the estimate, which shall be directed to the treasurer of such 
city, commanding him to make such assessment,or unpaid balance there- 



§ 223 CITIES. 286 

of, within ten da3^s after receiving such precept, of the owner in whose 
name such assessment is made, which precept the clerk shall forthwith 
deliver to the treasurer, who shall serve the same by reading the same, 
personally, to such owner, or by leaving a copy of such precept at his 
last or usual place of residence; or, if such owner be unknown, or 
not a resident of such city, then by publication for three successive 
weeks in a weekly newspaper printed and published in the city, briefly 
setting forth the facts of the estimate, the amount due, that the work 
has been done as contracted, the name of the person whose property 
is to be sold, the description of the property, and the date of the order 
of said precept by the said council, and giving notice that if such as- 
sessment be not paid within twenty days after publication, he will 
proceed to make the same by lev}^ and sale of the lot or land whereon 
the same is assessed. Any owner of land, or his representatives, ag- 
grieved by such precept, may appeal therefrom, within twenty days 
after such demand or publication, to the circuit court of the county 
wherein such city is situated, upon filing sufficient bond with the 
clerk of said city, conditioned for the payment of whatever judgment 
may be rendered against such appellant in said court; and such ap- 
peal shall stay all proceedings by such treasurer. And the trial of 
such appeal shall be conducted as other trials of civil causes are con- 
ducted in said court; provided that no question of fact shall be tried 
which may arise prior to the making of the contract for the said im- 
provement under the order of the council. The clerk shall, upon the 
filing of said bond, forthwith make out and certify, under his hand 
and official seal, a true and complete copy of all papers connected in 
any way with the said street improvement, beginning with the order 
of council directing the work to be done and contracted for, and in- 
cluding all notices, precepts, orders of council, bonds, and other papers 
filed in said matter; which transcript shall be in the nature of a com- 
plaint, and to which the appellant shall answer upon rule. And in 
case the court and jury shall find, upon trial, that the proceedings 
of said officers, subsequent to said order directing the work to be done, 
are regular; that a contract has been made; that the work has been 
done, in whole or in part, according to the contract; and that the esti- 
mate has been properly made thereon,-— then said court shall direct 
the said property to be sold and conveyed by the sheriff thereof, as the 
said treasurer is hereinafter directed to sell and convey property liable 
to street improvements: Provided, That nothing herein shall be so 
construed as to prevent any person from obtaining an injunction upon 
the proceedings prior to the making of any such improvements. If 
no such appeal shall have been taken as aforesaid, it shall be the duty 
of such treasurer, within ten days after the expiration of said twenty 
days, to levy said precept upon the lot or land therein described, and 
to sell the same, or so much thereof as may be necessary to pay such 
assessment with costs and charges. But before any such sale, he shall 
give notice of the time and place thereof, by advertising the same for 
three weeks successively in a newspaper printed and published nearest 



287 IMPROVEMENT OF STREETS. § 223 

to such lot or land, if any such be printed and published within the 
county wherein such city is situated, and by posting up written or 
printed notices thereof in at least three public places in said city. 
And every such sale shall be by public auction, and upon or near the 
premises or in the city courtroom of said city, in the discretion of said 
treasurer. And no sale of said lot or land previous or subsequent to the 
date of such estimate, and subsequent to the date of such petition or 
determination of the common council to make such improvement with- 
out petition, shall invalidate or affect any sale thereof in pursuance of 
this act. Upon the sale of any lot or land by virtue of such precept, 
and the payment of the purchase-money, the treasurer (or, in case of 
his death or going out of office, his successor) shall execute, acknowl- 
edge, and deliver to the purchaser a certificate of conveyance for the 
premises; which shall be valid and effectual to convey all the right, title, 
and interest of any such owner or purchaser from him as aforesaid, 
except as hereinafter provided, and shall be prima facie evidence of all 
the facts recited therein. In case the purchaser of any real estate un- 
der a precept, as aforesaid, having paid the purchase-money therefor, 
shall die before a certificate of conveyance, as herein provided, shall 
have been executed to him, the treasurer shall convey the same to the 
heirs or devisees of such deceased purchaser. The proceeds of any 
such sale shall be applied as follows, to wit: Firstly, To the payment 
of such assessment, with interest thereon from the date of such esti- 
mate, and all costs accrued thereon by reason of said sale; and, Sec- 
ondly, The residue of such proceeds shall be paid to the owner, or his 
or her heirs or representatives, of such real estate, or, if unknown, it 
shall be paid into the city treasury; and such city shall at all times be 
responsible to such owner, heirs, or representatives for such residue. 
The purchaser under such precept shall hold such real estate subject 
to the lien of the unpaid part of its proportion of the whole cost of the 
improvement. The treasurer shall be entitled to a commission of five 
per cent, on the first hundred dollars, and three per cent, on any ex- 
cess above that sum; but when the money is paid to him without sale, 
one-half commission only shall be received by him. For levying on 
the real estate and advertising the same, he shall receive one dollar; 
for personal demand for payment, twenty-five cents; for return of the 
precept, with his doings thereon, one dollar; for making certificate on 
sale of real estate, one dollar. He shall indorse on said precept the 
time of receiving the same, and, within three months thereafter, he 
shall make return thereof to the clerk, with his proceedings thereon. 
Any purchaser failing to pay the purchase-money shall be subject to 
the like penalties and proceedings as purchasers at sheriff's sale are 
by the laws of this state. The owner of any lot or land sold as afore- 
said, or his agent or attorney, heirs or representatives, may redeem 
the same at any time within one year after the day of sale, by paying 
to the purchaser, or to the city treasurer for the use of the said pur- 
chaser, or his heirs or assigns, the sum mentioned in his certificate 
and the amount of all subsequent assessments paid by the purchaser. 



§ 223 CITIES. 288 

with fifty per cent, on the whole sum, and interest from date of pur- 
chase or time of payment: Provided, That infants, idiots, insane per- 
sons, and femes covert may redeem any such lot or land belonging to 
them, sold for assessment as aforesaid, within one year from expira- 
tion of such disability. Claimants of a part of such land, or of any 
undivided part of the same, may redeem the whole as other owners 
may redeem. If such owner, or any person on his behalf, shall fail 
to redeem such land within one year as aforesaid, at the expiration 
thereof, and on production of the certificate of purchase, the treasurer 
shall execute to the purchaser, his heirs or assigns, in the name of the 
city, a conveyance of the real estate so sold; which shall vest in the 
grantee an absolute estate in fee-simple, subject, however, to all claims 
which the city may have thereon for assessments or liens or [other] 
incumbrances. Such certificate and final conveyance shall resemble, 
as nearly as may be, the certificate and conveyance for tax-sales, and 
be prima facie evidence of all the facts recited therein. R. S. 1894, 
§ 3628. 

This section was not repealed by the act of 1885 (arde, § 221 ; R. S. 1894, § 3626) , but 
was only modified as to the collection of assessments against unplatted lands. Crowell 
V. Jaqua, 114 Ind. 246.' 

The provisions of this section directing the manner of sale of property for a street im- 
provement, is not in conflict with § 22, article 4, of the constitution. Brookbank v. 
City of Jeffersonville, 41 Ind. 406. 

Precept— Estimate essential. — Without an estimate for work done in improving a 
street, as required by the preceding section, no valid precept for the collection thereof 
can be issued. The city civil engineer is the proper officer to make the estimate and 
apportion the costs to each lot or tract of land. Ray v. City of Jeffersonville, 90 Ind. 
567, 572; Goring v. McTaggart, 92 Ind. 200, 203; Van Sickle v. Belknap, 129 Ind. 558, 
561; Reeves v. Grottendick, 131 Ind. 107, 113; Lammers v. Balfe, 41 Ind. 218. 

Same — Mandate. — The engineer and common council can be compelled by mandate 
to make estimate and issue precept. Chapin v. Osborn, 29 Ind. 99; City of Indian- 
apolis v. Patterson, 33 Ind. 157 ; Wren v. City of Indianapolis, 96 Ind. 206; City of 
Greencastle v. Allen, 43 Ind. 347; Elliott Roads and Streets, p. 437. 

Assessment — When sufficient. — If the estimate of the city ci\dl engineer is adopted 
and approved by the common council, that is a sufficient assessment ; and the fact that 
the resolution adopting the estimate provides that property-owners who have paid part 
of former assessments which have been vacated shall have credit for such payments 
does not impair the effectiveness of such assessment. Reeves v. Grottendick, 131 Ind. 
107, 115. 

Where the common council approved an estimate and ordered it paid its power was 
exhausted, and it could not thereafter rescind the assessment and adopt another for a 
less sum. City of Indianapolis v. Patterson, 33 Ind. 157. 

The last and corrected estimate of the work done and cost of the improvement is the 
one on which the precept should issue. McGill v. Bruner, 65 Ind. 421. 

Precept— Order— Issuing'. — Under this section a city clerk has no authority to issue 
a precept for the collection of an assessment for a street improvement, without an order 
of the council, and a sale under a precept so issued is absolutely void ; and in a suit by 
a purchaser under a precept against lot 20, to quiet his title, a record of proceedings of 
the council showing the ordering of a precept against lot 52 is not admissible, nor is parol 
evidence admissible showing that the council intended to order the precept against lot 
20. Langohr v. Smith, 81 Ind. 495, 497. 

Same— Sig'nature of mayor.— Precepts issued for the collection of assessments should 



289 IMPROVEMENT OF STREETS. § 223 

be signed by the mayor. Signature of member of council acting temporarily as presi 
dent thereof is not sufficient, and precept so signed is void, and sale of property thereon 
will be enjoined. City of Jeffersonville v. Patterson, 32 Ind. 140. 

Contractor's affidavit essential.— A precept issued without the filing of an affidavit 
by the contractor, embodying in a substantial manner all of the requirements of this 
section providing for such affidavit, is void ; and where the complaint for the enforce- 
ment of an assessment shows an insufficient affidavit, it is bad on demurrer. Clements 
V. Lee, 114 Ind. 397, 400. 

Joint contractor's affidavit.— The affidavit of one of two or more joint contractors 
to obtain a precept is sufficient. Eay v. City of Jeffersonville, 90 Ind. 567, 574; Jenk- 
ins V. Stetler, 118 Ind. 275, 278; Eeeves v. Grottendick, 131 Ind. 107, 111. 

Survivor's affidavit sufficient. — Where the work in improving a street is completed 
by two joint contractors, and after the assessment is made one dies, a precept may issue 
thereafter in favor of both, and the affidavit to obtain such precept may be made by the 
survivor. Eay v. City of Jeffersonville, 90 Ind. 567, 574. 

Affidavit, when sufficient. — It is sufficient if the affidavit for a precept substantially 
conform to the statutory requirements ; and it need not contain a recapitulation of all 
the steps that have been taken previous thereto in the proceedings. E. S. 1894, 
§ 3628; Balfe v. Johnson, 40 Ind. 235, and Clements v. Lee, 114 Ind. 397, distinguished. 
Eeeves v. Grottendick, 131 Ind. 107, 112. 

The affidavit filed for a precept must show the making of an estimate and the amount 
for which each parcel or lot of land is liable. Balfe v. Johnson, 40 Ind. 235. 

If the notice to the property owner of the amount of the assessment contains a de- 
scription of the property owned, and such notice is combined with the affidavit for a 
precept, the latter need not contain a description of the lot against which it is desired 
to obtain a precept. Eeeves v. Grottendick, 131 Ind. 107, 112. 

Affidavits — Some g'ood — Some not.— If there is a joint appeal from several precepts, 
and the several precepts are included in one transcript, and on such appeal the tran- 
script is treated by the appellants as a single complaint, the overruling of a demurrer 
for want of facts is not an available error in the supreme court, even though some of the 
afladavits for precepts are defective. Eeeves v. Grottendick, 131 Ind. 107, 113. 

Variance of names of contractors. — A variance between the names of the contract- 
ors as set out in the precept and in the proceedings of the council is immaterial if it 
reasonably appears that one and the same person is meant. Eeeves v. Grottendick, 131 
Ind. 107, 114. 

Void precept — Injunction, — Injunction lies to restrain a sale of real estate upon a 
void precept issued on account of a street improvement. Goring v. McTaggart, 92 Ind. 
200, 201 ; Bishop v. Moorman, 98 Ind. 1, 2 ; City of Ft. Wayne v. Shoaff, 106 Ind. 66, 67 ; 
Balfe V. Lamnfers, 109 Ind. 347, 349; City of Jeffersonville v. Patterson, 32 Ind. 140; 
Elliott Eoads and Streets, p. 441. 

The common council has no right to issue a precept on an improper assessment. 
Lammers v. Balfe, 41 Ind. 218. 

The making of a correct assessment, after a precept has issued on an incorrect one, 
can not relate back so as to make the precept good and defeat an appeal from the pre- 
cept. Lammers v. Balfe, 41 Ind. 218. 

A precept issued for the collection of the assessments on two lots in gross, without 
directing the sale of each separately, is voidable but not void. Martindale v. Palmer, 
52 Ind. 411. 

Assessments— Enforced— Other assessments can not be inquired into.— The va- 
lidity or accuracy of any other assessment than the one sought to be enforced can not 
be questioned. If that appears to be accurate and enforcible the contractor is entitled 
to judgment. Sims v. Hines, 121 Ind. 534 

In an action upon a note or due bill given by A., the cUiiui evidenced by the note or 
CiT. AND To.— 19 



§ 223 CITIES. 290 

due bill being based upon a street improvement ordered to be made by the common 
council, a motion by the defendant to make the mayor and common council parties 
plaintiff was properly overruled. For fuller statement of facts see McDonald v. Yeager, 
42 Ind. 388. 

Assessment void as to others.— The owner of property against which a precept to 
collect an assessment has been issued can not object to its enforcement on the ground 
that assessments against neighboring lots are void. Eeeves v. Grottendick, 131 Ind. 
107, 115. 

The rule that a property owner can not complain because other property was not also 
assessed, apphes only where the assessment was accurate, and not vvhere the assess- 
ment was wrongfully made, Crawfordsville, etc., Assn. v. Clements, 12 App. 464. 

Eight of appeal— Apportionment.— Section 2 of the act of April 14, 1881 {ante § 220), 
is not open to the objection of cutting off all right of appeal from the apportionment of 
the assessment by the city engineer; R. S. 1894, § 3628, gives such appeal. Ray v. City 
of Jeffersonville, 90 Ind. 567, 571. 

Appeal is a direct attack.— An appeal from a city precept foreclosing an assessment 
lien on a lot for a street improvement is a direct, and not a collateral, attack on the 
validity of the assessment. Crawfordsville, etc., Assn. v. Clements, 12 App. 464. 

Eig"ht of appeal statntory. — The right to appeal from a precept is a statutoiy right, 
and there is no inherent right of appeal from it. Reeves v. Grottendick, 131 Ind. 107, 
109. 

Appeal from precept— Parties — Bond. — On an appeal from a precept issued to en- 
force the collection of an assessment for the improvement of a street, the contractor 
who did the work, and for whose benefit the precept is issued, is the proper party 
plaintiff, and not the city. The appeal bond in such case should be made payable to 
the contractor, and not to the city. First Presbyterian Church v. City of Lafayette, 42 
Ind. 115; Bennett v. Seibert, 10 App. 369. 

Where, in the action, the city appears as the party plaintiff, and the cause is allowed 
to proceed to final judgment without objection, and the court, in the judgment, orders 
the money when collected to be paid to the contractor, the judgment will be substan- 
tially a judgment in favor of the contractor, and the supreme court T^dll deem the com- 
plaint amended by making him the plaintiff. First Presbyterian Church v. City of 
Lafayette, 42 Ind. 115. 

Appeal— Defective bond— Dismissal.— Where, upon appealing under this section, 
from a precept to collect an improvement assessment, a defective bond is given, the cir- 
cuit court may require a sufiScient bond to be given, and if this is done a motion to dis- 
miss the appeal should be overruled. Bennett v. Siebert, 10 App. 369. 

^ATiere a precept, issued for the collection of an assessment for a street improvement, 
is abandoned by the city before sale, and upon a new order of the common council a 
second precept issues for the same assessment, the time within w^hich an appeal may 
be taken is to be computed from the time of giving notice under the second precept. 
Halstead v. City of Attica, 28 Ind. 378. 

Transcript— Liberal construction.— By statute the transcript certified to the circuit 
court by the city clerk, in an appeal from a street improvement, constitutes the com- 
plaint of the contractor ; and it should not be construed with rigid strictness against 
him, and ought to stand, unless there is some defect in it which affects the substantial 
rights of the parties. Reeves v. Grottendick, 131 Ind. 107, 109; Phillips v, Jollisaint, 
7 App. 458, 459; McGill v. Bruner, 65 Ind. 421. 

Amendment — Transcript or precept. — The circuit court has no authority to amend 
the transcript or precept, or to authorize an amendment thereof, but such amendments 
must be made by the order or with the consent of the common council, after which an 
amended transcript may be filed. Jenkins v. Stetler, 118 Ind. 275, 278; Balfe v. John- 
son, 40 Ind. 235; Lammers v. Balfe, 41 Ind. 218; McGill v. Bruner, 65 Ind. 421. 



291 IMrKOVEMENT OF STREETS. § 223 

Where the affidavit on which the precept has issued is defective, such affidavit can 
not be amended on appeal. Balfe v. Johnson, 40 Ind. 235. 

Under act of 1857, upon appeal the transcript must contain a copy of the contract 
for the improvement ; also, the act authorizing collection of assessments by precept is 
constitutional. City of Logansport v. Blakemore, 17 Ind. 318 ; Flournoy v. City of 
Jeffersonville, 17 Ind. 169. 

"Where the improvement is without petition, the transcript must show that two-thirds 
of the members of the council voted for the order of improvement. Moberry v. City of 
Jeffersonville, 38 Ind. 198; Baker v. Tobin, 40 Ind. 310; Yeakel v. City of Lafayette, 
48 Ind. 116. 

TMiere it does not appear from the transcript that, on the line of the improvement 
ordered, there are public grounds, or street or alley crossings, it is not necessary that 
the transcript should show that provisions have been made for the payment by the city 
for street or alley crossings, or for improvement in front of public grounds. Moberry v. 
City of Jeffersonville, 38 Ind. 198. 

Omissious in transcript— Certiorari.— Where the transcript omits any material pro- 
ceeding had before the common council, the proper practice is, not by a motion to make 
certain, but, upon cause shown, to procure a certiorari upon, or an order against the city 
clerk, to supply the omission. McGill v. Bruner, 65 Ind. 421. 

Where such transcript shows that, upon the completion of the improvement, a com- 
plete and corrected estimate of the cost had been made by the city engineer, and 
adopted by the common council, in the stead of partial estimates made during the 
progress of such improvement, the omission of such partial estimates from the transcript 
does not render it insufficient. McGill v. Bruner, 65 Ind. 421. 

On an appeal from a precept issued for the collection of an assessment for a street 
improvement, if it appears from an amended transcript that the precept was issued on 
an imperfect final estimate, and that the perfected final estimate was filed after the 
appeal was taken, and after a demurrer was sustained to the original transcript, the 
amended complaint or transcript will be bad on demurrer. Lammers v. Balfe, 41 Ind. 
218. 

A remonstrance against a proposed improvement is not a part of the transcript. 
Brookbank v. City of Jeffersonville, 41 Ind. 406. 

When demurrer will lie. — Although irregularities or errors may be disclosed by the 
transcript, a demurrer will not lie, unless the errors or irregularities affirmatively ap- 
pear to have occurred after the contract was entered into with the city. Sims v. Hines, 
121 Ind. 534, 538. 

As the transcript is in the nature of a complaint, it is good on demurrer if it shows 
some notice. If the notice is insufficient the fact must be set up as a defense by way of 
answer, if the sufficiency of the notice can be inquired into at all — which is doubted. 
Taber v. Ferguson, 109 Ind. 227; Clements v. Lee, 114 Ind. 397. 

Defense, answer.— If there is any defense, except a jurisdictional one, it must be 
made by w^ay of answer in order to give the contractor an opportunity to avoid it, if he 
can, by w^ay of reply. Sims v. Hines, 121 Ind. 534, 538. 

Same — Estimate — Presumption. — In the absence of an answer showing that the im- 
provement was not completed according to contract, the court must presume that the city 
engineer and the common council, in ordering a precept, did their duty. Jenkins v. 
Stetler, 118 Ind. 275. 

An answer directed to the entire transcript, but presenting a defense to only part of 
the sum for which the precept was issued, is bad on demurrer. Hellenkamp v. City of 
Lafayette, 30 Ind. 192. 

Where an assessment for a street improvement has been made upon a lot as being 
owned by two persons jointly, an answer on an appeal by one of such persons from a 
precept issued for the collection of such assessment, alleging that such persons were, at 



§ 223 CITIES. 292 

the date of the estimate, and still are, owners in severalty of distinct parts of the lot, 
presents a good defense. Eomig v. City of Lafayette, 33 Ind. 30. 

It is a sufficient answer that at the date of the estimate on which the precept was is- 
sued the person taking the appeal owned, and has since owned, only a portion of the 
lot against which the precept is directed, which portion does not adjoin the street im- 
proved. Romig V. City of Lafayette, 33 Ind. 30; City of New Albany v. Cook, 29 Ind. 
220. 

Appeal— What questions triable.— In an appeal from a Judgment enforcing an as- 
sessment made for a street improvement, where the transcript shows jurisdiction, no 
question of fact can be tried which arises prior to 'the making of the contract. Nor will 
any defect or irregularity which occurred prior to that time affect the right of the con- 
tractor to enforce collection of the assessment. The questions to be tried on appeal are 
whether a contract was made or not, and whether the proceedings subsequent to the or- 
der for the improvement are regular, and whether the work has been done according 
to the contract or not. Moberry v. City of Jeffersonville, 38 Ind. 198; McEwen v. Gil- 
ker, 38 Ind. 233, and Kretsch v. Helm, 45 Ind. 438, overruled; Taber v. Ferguson, 109 
Ind. 227, 231; Ross v. Stackhouse, 114 Ind. 200, 204; AViles v. Hoss, 114 Ind. 371; 
Clements v. Lee, 114 Ind. 397, 399; Jenkins v. Stetler, 118 Ind. 275, 277; Sims v. Hines, 
121 Ind. 534, 537; Ball v. Balfe, 41 Ind. 221 ; Gulick v. Connely, 42 Ind. 134; Budd v. 
Kraus, 79 Ind. 137; Boyd v. Murphy, 127 Ind. 174; Reeves v. Grottendick, 131 Ind. 
107; Hellenkamp v. City of Lafayette, 30 Ind. 192; Martindale v. Palmer, 52 Ind. 411. 

Questions antedating" contract. — No question that reaches back of the time of the 
contract for street improvement can be litigated on an appeal from a precept ; and no 
irregularity in the proceedings prior to that time can be drawn in question. The steps 
taken in the proceedings prior to that time need not be incorporated in the transcript. 
Boyd V. Murphy, 127 Ind. 174, 177 ; Reeves v. Grottendick, 131 Ind. 107, 110. 

Whether or not the ground ordered improved is a public street or not can not be 
questioned on appeal. Moberry v. City of Jeffersonville, 38 Ind. 198. 

Damag'es, set-off. — L^pon an appeal from a judgment enforcing a street improve- 
ment assessment, this section prescribes what shall be tried, and in such a proceeding 
evidence is not admissible to show that the contractor wrongfully removed gravel and 
other material. Such alleged damages can not be set off against the assessment. Sims 
V. Hines, 121 Ind. 534, 537. 

The proceedings up to and including the making of the contract will be deemed legal. 
Trustees, etc., v. Rausch, 122 Ind. 167. 

If the city council adjudges that the notice of letting a contract is sufficient, the mat- 
ter can not be inquired into on appeal from a precept to collect an assessment. Ross v. 
Stackhouse, 114 Ind. 200; Clements v. Lee, 114 Ind. 397; Wiles v. Hoss, 114 Ind. 371; 
Martindale v. Pahner, 52 Ind. 411. 

Presumption. — Upon appeal it will be presumed that the street under improvement 
was legally laid out and opened, and that if the land-owner was damaged thereby and 
claimed compensation, he received it. Kalbrier v. Leonard, 34 Ind. 497. 

Upon appeal, when council has adjudged the notice suffi.cient, an inquiry into such 
incidental facts as the rejection of bids and the subsequent reconsideration of the vote 
of rejection, can not be had. Ross v. Stackhouse, 114 Ind. 200. 

There is a line of cases holding that the transcript on appeal must show that an order 
of council was duly passed ordering the improvement, and that the letting of the con- 
tract was duly advertised. The most if not all of these cases seem to have been over- 
ruled by the cases above cited. Moberry v. City of Jeffersonville, 38 Ind. 198 ; McEwen 
V. Gilker, 38 Ind. 233; Kretsch v. Helm, 45 Ind. 438; Baker v. Tobin, 40 Ind. 310; 
Stewart V. City of Jeffersonville, 41 Ind. 153; Brookbank v. City of Jeffersonville, 41 
Ind. 406 ; City of Logansport v. Legg, 20 Ind. 315. 

The decision of the council as to which of the bids should be accepted can not be in- 
quired into on appeal. Boyd v. Murphy, 127 Ind. 174. 



293 IMFROVEMENT OF STREETS. § 22 



Where it appears that the common council has given any sort of notice of the letting 
of the contract for the improvement of the street, its sufficiency can not be inquired into 
after the work has been done, under color of the proceedings, with the acquiescence of 
the parties benefited. Clements v. Lee, 114 Ind. 397. 

The transcript or complaint, on appeal from a precept, must show that at meetings of 
the council, when the improvement was ordered, a quorum was present. But see cases, 
snpra. Brookbank v. City of Jeffersonville, 41 Ind. 406. 

Appeal, effect on proceeding's.— Where an appeal is taken from proceedings to im- 
prove a street, the city is not compelled to stop the work while the appeal is pending ; 
and in such case, if, on appeal, the city prevails, the work may be finished under the 
original proceedings, but if the property owner is successful, and the court decides that 
there is some irregularity in the proceedings, the city may correct the same or begin 
anew, according to the determination of the court on appeal. If, however, the court, 
on appeal, adjudges the entire proceedings void, and no appeal is taken from such judg- 
ment, and the city does not proceed anew under the statute, it amounts to an abandon- 
ment of the appropriation of the land, and the title to the property reverts to the ov/ner. 
Morris v. Watson, 8 App. 1, 6. 

Where, in a proceeding for the opening of a street, the property owner appeals, and 
such proceedings are held null and void, and the property owner then accepts damages 
from the city for the appropriation of the land as a street, the property owner is es- 
topped from denying the validity of the lien of an improvement assessment in favor of 
the contractor who improved the street under proceedings concurrent with the pro- 
ceedings for opening the street so held void. Morris v. Watson, 8 App. 1. 

Conclusiveness of judg'ment. — Where, on appeal by a property owner from a pre- 
cept, the proceedings are sustained, and judgment is rendered in favor of the contractor, 
the latter is concluded by it, if unappealed from, as to all questions before the court, 
including the validity of the estimate and the sufficiency of the description, and can not 
take out another precept. Balfe v. Lammers, 109 Ind. 347, 350. 

The finding of the court upon appeal should show the dates and amounts of the sev- 
eral ass^sments, and from such finding the sheriff can calculate the interest to the date 
of sale. Brookbank v. City of Jeffersonville, 41 Ind. 406. 

Costs. — The costs which accrue upon an appeal from a precept should be adjudged 
against the losing party personally. Brookbank v. City of Jeffersonville, 41 Ind. 406. 

Estoppel. — Unless the proceedings under which a street improvement is being made are 
totally void, a property owner who stands by, and, without objection, receives the benefit 
of the work, is estopped thereafter to question the legality of the proceedings. New Al- 
bany, etc., Co. V. Crumbo, 10 App. 360; City of Lafayette v. Fowler, 34 Ind. 140; City 
of Evansville v. Pfisterer, 34 Ind. 36; McCoy v. Able, 131 Ind. 417; Taberv. Ferguson, 
109 Ind. 227; Ross v. Staokhouse, 114 Ind. 200; Jenkins v. Stetler, 118 Ind. 275; Palmer 
V. Stumph, 29 Ind. 329; Busenbark v. Clements, App. Ct., April 25, 1899; Elliott Roads 
and Streets, pp. 418-423. 

A request by a property owner for action by council on a contract is an affirmance of 
the contract. Johnson v. Allen, 62 Ind. 57. 

Injunction— Collateral attack,— Where there is no legal authority to make an as- 
sessment, its enforcement and collection may be enjoined. City of Terre Haute v. 
Mack, 139 Ind. 99; Crawfordsville, etc., Assn. v. Clements, 12 App. 464; Elliott Roads 
and Streets, pp. 440, 441. 

If a property owner claims to be the OAvner of the ground ordered improved as a 
street, his remedy is by injunction to prevent the improvement. ^IcGill v. Bruner, 6o 
Ind. 421. 

Where a common council of a city undertook, without a petition from two-thirds of 
the property-owners interested, to improve a certain street, it is not enough — in a pro- 
ceeding to enjoin the assertion of a lien on the property of the adjoining owners, on the 
ground that the proceedings to establish said improvements were void— to assert that 



§ 223 CITIES. 294 

two-thirds of the adjoining lot-owners did not petition for the improvement. As sach 
an action is a collateral attack upon the proceedings of the corporate officers, it is not 
proper as to any defects or irregularities which do not affect the jurisdiction ; and a de- 
cision of the council, upon jurisdictional facts, is conclusive as against a collateral at- 
tack, and without a showing to the contrary it will be presumed that the council cor- 
rectly decided jurisdictional questions. McEneney v. Town of Sullivan, 125 Ind. 407, 
410; DePuy v. City of Wabash, 133 Ind. 336, 339. 

Injunction will lie to restrain the collection of an assessment for a street improve- 
ment levied upon property which the city had no power to assess for such improvement. 
Balfe V. Lammers, 109 Ind. 347. 

Questions as to the taking of the yeas and nays on the passage of an ordinance, as to 
the amount of the estimate and as to a mistake in describing the property, can not be 
presented by a complaint to enjoin the collection of a street improvement. Balfe v. 
Lammers, 109 Ind. 347. 

An injunction will not be granted because, in performing the work, a portion of the 
lot has been wrongfully appropriated, the fence torn down, the soil removed and a 
sidewalk laid thereon. City of Indianapolis v. Gilmore, 30 Ind. 414. 

Irregularities prior to the making of the contract are deemed waived, unless taken 
advantage of by an injunction suit, before the work is performed. City of Indianapolis 
V. Imberry, 17 Ind. 175; Board, etc., v. Silvers, 22 Ind. 491; Hellenkamp v. City of 
Lafayette, 30 Ind. 192. 

The provision in the statute that no question of fact shall be tried on appeal which 
may arise prior to the making of the contract is constitutional. Board, etc., v. Silvers,. 
22 Ind. 491. 

Sale— Notice. — The notice of the issuance of precepts for street improvements is not 
invalid as to an assessment where the notice states the amount of assessment at $32.10 
instead of $32.20, the correct amount^ as the law does not observe trifles. Burt v. lias- 
sehnan, 139 Ind. 196. 

Non-resident — City not liable for deficiency.— Where one of the lots opposite which 
the street was improved was owned by a non-resident, and was sold for a sum less than 
the assessment, the contractor could not maintain an action against the city for the de- 
ficiency. City of New Albany v. Sweeney, 13 Ind. 245. 

If a precept is issued and a sale made for more than is due, the sale is void and title 
does not pass. Wilson v. Poole, 33 Ind. 443 ; Naltner v. Blake, 56 Ind. 127. 

Description of land. — If the i^roperty sold on assessment for a street improvement is 
insufficiently described, the sale will be void ; but where the description in the estimate 
by the engineer, taken in connection with the ordinance providing for the improve- 
ment and the contract awarded under such ordinance, is such as would enable a person 
somewhat acquainted with surveying to find and identify the land, it is sufficient. Nalt- 
ner v. Blake, 56 Ind. 127; Peru, etc., E. Co. v. Hanna, 68 Ind. 562. 

For a description held sufficient, see Yeakel v. City of Lafayette, 48 Ind. 116. 

Where, in making a street improvement, and as a part thereof, the city enters upon 
and appropriates a part of the adjoining lot, by erecting a wall thereon, the cost of 
constructing such wall, whether made with or without the consent of the owner, can 
not be included as a part of the assessment for the improvement of the street, and sale 
be made for the aggregate. Naltner v. Blake, 56 Ind. 127. 

Sales— Caveat emptor applies.— The doctrine of caveat emptor applies as fully to sales 
upon assessments for street improvements as to any other analogous class of sales. 
Churchman v. City of Indianapohs, 110 Ind. 259, 267. 

Deed — Effect of recital in. — A recital in a deed executed by a city treasurer upon a 
sale of lands in satisfaction of an assessment for a street improvement, that '' it appear- 
ing from the records of the common council of said city, in the city clerk's office, that 
the aforesaid lands were legally hable for such assessment," was not a representation of 



295 OPENING AND VACATION OF STREETS. § 223 

fact upon which the grantee had a right to rely. Churchman v. City of Indianapohs, 
110 Ind. 259, 268. 

Deed— Evidence aliunde.— Where recitals in a deed executed pursuant to a sale un- 
der a precept for the collection of an assessment for a street improvement are shown to 
be false by evidence aliunde, the recitals can not be treated as true. Langohrv. Smith, 
81 Ind. 495, 499. 

Setting" aside sale — Plaintiff's remedy— Assessment.— In an action to quiet title to 
a lot, against a defendant's adverse claim of title through a purchase of a lot in satisfac- 
tion of a street improvement, a mistake by the city civil engineer in estimating the 
Avork done under the contract, and assessable against the lot, and other irregularities 
occurring subsequently to the making of the contract, having been inquired into by the 
court, the sale set aside and the amount chargeable against the lot ascertained, the 
plaintiff could not complain; for the defendant having a lien against the lot, the 
plaintiff wa^ only entitled to have his title quieted to the lot, as to all claims of title 
except the lien for the assessment chargeable against it for the street improvement. 
Trustees, etc., v. Eausch, 122 Ind. 167. 

Voluntary payment. — Money voluntarily paid on a demand in the nature of a tax — 
and a street improvement assessment is such — can not be recovered back in the absence 
of an express statutory provision authorizing such recovery. Churchman v. City of In- 
dianapolis, 110 Ind. 259, 267. 

Yoluntary payment — Eefunding*.- There is no statute which authorizes the refund- 
ing by a city of money voluntarily paid upon an erroneous or irregular, or even wrong- 
ful, assessment for the improvement of a street. Churchman v. City of Indianapolis, 
110 Ind. 259, 267. 

Surplus earth — Validity ,of ordinance. — The validity of a provision in an ordinance 
authorizing a street improvement that surplus earth accumulating in the course of the 
improvement shall belong to the contractor, can not, under this section, be questioned in 
a proceeding to enforce an assessment. Jenkins v. Stetler, 118 Ind. 275, 277. 

Eepeal of law — Effect. — The repeal of the law under which the contract for a street 
improvement is made, after the work has been done and the precept ordering the sale 
of the property issued, does not take away the remedy of the contractor. His claim is 
merged in what is equivalent to a judgment and execution levied upon the property, and 
is a vested right which the legislature can not take away from him. Palmer v. Stumph, 
29 Ind. 329; Phillips v. JolUsaint, 7 App. 458. 

AETICLE 5.— OPENING AND VACATION OF STEEETS. 

SEC. SEC. 

224. City commissioners. 239. No injunction. 

225. Proceedings in council. 240. Payment of damages. 

226. Duty of commissioners. 241. Tendering damages — Injunction. 

227. Hearing and proceedings. 242. V^acation of streets, etc. 

228. Assessment of damages and benefits. 243 Proceedings of commissioners. 

229. Eeport. 244. Eeport. 

230. Eeport. 245. Action on report. 

231. Eeport as to infants and insane. 246. Clerk's duty. 

232. Action of council on report. 247. Eeference of report and proceedings. 

233. Duty of clerk— Lien. 248. Change of street on petition of abutters. 

234. Payment of damages. 249. Eemoval of obstructions, etc. 

235. Collection of assessments. 250. Plats. 

236. Eeport of collections. 251. Pending proceedings. 

237. Private corporations. 252. Compensation and damages. 

238. Appeal. 



§ 224 CITIES. 296 

[Acts 1875 S., p. 17. In force May 17, 1875.] 
224. City commissioners. — 1. There shall be appointed, once in 
each year, by the circuit court in the county wherein is situated any 
city of this state incorporated under the general act for the incorpora- 
tion of cities, five freeholders, residents of said city, who shall consti- 
tute a body to be called city commissioners and whose duty it shall be 
to hear and determine all matters appertaining to the acquisition, 
opening, laying out, altering, and straightening of streets, alleys, 
and highways within said city, and also to hear and determine all 
matters appertaining to the altering or straightening of streams with- 
in said city, and the taking of lands for sewerage purposes. Such 
commissioners shall serve for one year and until their successors are 
elected and qualified; and, before entering upon the duties of their 
appointment, shall take an oath to faithfully and impartially discharge 
their duties as commissioners; which oath shall be indorsed upon their 
certificate of appointment. The city clerk shall, within three days 
after such appointment, issue to each commissioner a certificate of his 
appointment. R. S. 1894, § 3629. 

Constitutional law, — For constitutional provisions applicable, see ante, §§ 4 and 11, 
and notes. 

Constitutional. — This act is not unconstitutional upon the ground that it attempts to 
confer executive power upon the judiciary contrary to art. 3 of the constitution ; nor be- 
cause it is an invasion of the right of local self-government. City of Terre Haute v. 
Evansville, etc., E. Co., 149 Ind. 174. 

The statute construed. — The above and succeeding sections should be construed 
with ante, § 218, et seq. City of Terre Haute v. Evansville, etc., K. Co., 149 Ind. 174. 

Statute construed— Amendatory and supplemental.— The act of March 17, 1875, 
in relation to laying out streets, etc., is amendatory and supplemental to the general 
law concerning cities, of March 14, 1867. Hays v. City of Vincennes, 82 Ind. 178. 

Statute construed strictly. — The statute provides for the taking of private property 
for public use, and such statutes are to be strictly construed. City of Logansport v. 
Shirk, 129 Ind. 358; Town of Marion v. Skillman, 127 Ind. 130. 

De facto officers — Injunction — Oath. — The requirements concerning the oath of the 
city commissioners is directory. If not sworn they are de facto officers, and the valid- 
ity of their acts can not be questioned collaterally. Caskey v. City of Greensburg, 78 
Ind. 234. 

Eeg'ularity of appointment— Objections.— All questions as to the regularity of the 
appointment of the commissioners must be raised by verified answer. Bradley v. City 
of Frankfort, 99 Ind. 417. 

Proceedings to open— When not void— Substantial compliance with the statute.— 
The law makes the opening of streets and alleys in cities and to^Tis, in some measure, 
summary proceedings made in behalf of the general welfare of the inhabitants, and if 
there is a substantial compliance with the requirements of the statute, made in good 
faith, the proceedings will not be held void Graves v. Town of Middleton, 137 Ind. 
400. 

Appropriation of land for street. — Where a city desires to appropriate land for the 
purposes of a street, it must first comply with the provisions of the law as to the assess- 
ment and tendering of damages to the owner. City of Lafayette v. Bush, 19 Ind. 326 ; 
McKernan v. City of Indianapolis, 38 Ind. 223; City of New Albany v. White, 100 Ind. 
206; Dantzer v. Indianapolis, etc., R. Co., 141 Ind. 604; City of New Albany v. Endres, 
143 Ind. 192. 



297 OPENING AND VACATION OF STREETS. § 224 

Land can not be appropriated for the purposes of a street unless compensation is first 
assessed and paid or tendered. Faust v. City of Huntington, 91 Ind. 493; Holden v. 
City of Crawfordsville, 143 Ind. 558; City of New Albany v. Endres, 143 Ind. 192; City 
of Terre Haute v. Blake, 9 App. 403 ; Elliott Eoads and Streets, p. 178, et seq. 

Constitution of 1816— Private property for public use.— Under the constitution of 
1816, private property might be taken for, and applied to, a public use, before making 
compensation therefor. Under that constitution it was sufficient if provision was made 
for payment of compensation, and it was not necessary that the compensation should 
be assessed and paid or tendered before the taking for a public use. Prather v. Western 
etc., Co., 89 Ind. 501, 518; Rubottom v. McClure, 4 Blackf. 505; Prather v. Jefferson- 
ville, etc., R. Co., 52 Ind. 16; Allen v. Jones, 47 Ind. 438; McCormick v. President, 
etc., 1 Ind. 48; H:ankins v. Lawrence, 8 Blackf. 266. 

Chang'e of channel of stream. — Where a city attempts to change the channel of a 
stream of water flowing through a portion of a city, there must be a substantial com- 
pliance -with, the charter. McKernan v. City of Indianapolis, 38 Ind. 223. 

Presumption of leg'al opening'. — The presumption is that a street was legally laid 
out and opened, and that property owners damaged thereby claimed and received com- 
pensation. Sims V. City of Frankfort, 79 Ind. 446, 457. 

Opening' alley— Resolution of common council— Damag-es— Dismissal.— A provis- 
ion in the resolution of a common council approving the final report of the city com- 
missioners in a proceeding, under this and following sections (R. S. 1894, §§ 3629- 
3657),' for the opening of an alley and appropriating the land, that the owner's damages 
shall not be paid until after the collection of assessments for benefits, does not warrant 
a dismissal of the proceedings, as the council is authorized to delay the opening until 
the benefits are collected. In the absence of such a provision delaying the payment of 
damages, the damages assessed are due and collectible from the city as soon as the ap- 
propriation of the land is made. Holden v. City of Crawfordsville, 143 Ind. 558; 
City of Terre Haute v. Blake, 136 Ind. 636 ; City of Terre Haute v. Blake, 9 App. 403. 

Vacation— Obstruction of easement of access to property thereby— Damag-es— Re- 
covery. — The obstruction of the easement of access need not always be upon the imme- 
diate front of the lot, the owner of which is affected, but if the obstruction, though re- 
mote, renders access to such lot impossible, or impairs it in a substantial manner at the 
point where it abuts upon the street, the property right of the property owner is invaded 
and he may recover. Dantzer v. Indianapolis, etc., R. Co., 141 Ind. 604; Pennsylva- 
nia Co. V. Stanley, 10 App. 421. 

Recovery in such case is limited to injury different in kind, and not simply in degree 
from that suffered by the community in general. Dantzer v. Indianapolis, etc., R. Co., 
141 Ind. 604; Decker v. Evansville, etc., R. Co., 133 Ind. 493. 

Injury in common Avith community in g-enerai- Remote obstruction— Inconven- 
ience of access. — Where a lot does not abut upon the street obstructed, and the owner 
is only affected by an inconvenience in traveling to and from his premises, the incon- 
venience is one suffered alike by all the community and no recovery therefor can be 
had. Dantzer v. Indianapolis, etc., R. Co., 141 Ind. 604. 

Easement of access, lig-ht and air— Remote obstruction.— Easements of access, of 
light and air are all confined to the street in front of the lot, and if a remote obstruction 
does not affect these there is no legal injury, or tort, even though the access be rendered 
more inconvenient or a more circuitous route of access is necessitated. Dantzer v. In- 
dianapolis, etc., R. Co., 141 Ind. 604. 

Vacation— Rig'ht of recovery— Question of law and fact.— As to whether one whose 
access to his property has not been cut off by vacation of a part of a street may recover 
is a question of law. The degree of injury is a question of fact. Dantzer v. Indian- 
apolis, etc., R. Co., 141 Ind. 604. 

Vacation— Owner of abutting- land.— The owner of lands outside of, but adjoining 



§ 224 CITIES. 298 

the line of a city, and at which a street terminates, has no right to remonstrate against 
the vacation of such street. House v. City of Greensburgh, 93 Ind. 533, 538. 

Objections by outside owner. — The fact, if it be a fact, that the owner of an adjacent 
lot objects to the vacation of the street, does not give the owner of land outside of the 
city boundaries a sufficient cause of action for enjoining the proceedings of the city in 
the proposed vacation of the street. House v. City of Greensburgh, 93 Ind. 533, 539. 

Abandonment — Non-user — Yacation. — The failure of municipal authorities to keep a 
street in repair, or the mere non-user of a portion or all of such street by the public for 
a considerable time, will not authorize an inference of abandonment. The only way 
by which a street can be lawfully abandoned is by a proceeding to vacate the same. 
Cheek v. City of Aurora, 92 Ind. 107, 114; City of Lawrenceburgh v. Wesler, 10 App. 
153, 163 ; Elliott Eoads and Streets, p. 658. 

Wrong'ful appropriation of land. — Where a city wrongfully takes possession of land 
and permanently appropriates and uses it for a street, it is liable as a tort-feasor for tak- 
ing possession of private property without complying with the charter under which it is 
incorporated. City of Ft. Wayne v. Hamilton, 132 Ind. 487 ; City of Huntington v. 
Kenower, 12 App. 456. 

Same — Damag-es — Estoppel. — In an action to enforce a lien for street improvements, 
an appeal having been taken from the improvement proceedings, and a judgment ren- 
dered on appeal declaring such proceedings null and void, the property owners are 
estopped to deny the city's right to the land appropriated for such street, and the re- 
sulting lien of the contractor, where, after such judgment annulling the improvement 
proceedings, they accepted damages of the city for the appropriation of the land as 
above mentioned. The rule is the same whether the land-owner accepts damages in 
proceedings under the writ of assessment or in a suit for damages. Morris v. Watson, 
8 App. 1. 

A recovery of damages for such wrongful appropriation of land for a street ipso facto, 
works a dedication thereof to the city. City of Huntington v. Kenower, 12 App. 456. 

Loss of benefits — Wrong'ful appropriation.— Where a city wrongfully takes posses- 
sion of land and permanently appropriates it for a street, the fact that the city loses the 
benefits to other land holders on account of the opening of the street which it might 
have assessed against them, is the result of its own failure to proceed according to law, 
and such loss is not chargeable to the owner of the land so wrongfully appropriated. 
City of Fort Wayne v. Hamilton, 132 Ind. 487. 

Permanent injury— Measure of damag'es.— Where land is wrongfully appropriated 
by a city, and the injury complained of is permanent, and the complaint recognizes the 
right of the defendant to continue in the use of the property wrongfully appropriated, 
and to succeed to the plaintiff's title to the property, damages may be assessed upon 
the basis of its value. In such case, in arriving at the amount of damages, it was proper 
for the jury to deduct the value of the property with the improvement from its value 
without the improvement. City of Fort Wayne v. Hamilton, 132 Ind. 487 ; City of 
North Vernon v. Voegler, 103 Ind. 314; Ind., etc., R. Co. v. Eberle, 110 Ind. 542. 

Purchaser's rig'ht to damag'es.— A purchaser, to whom city lots are conveyed by 
warranty deed while a proceeding to condemn a portion thereof for street purposes is 
pending, is entitled to recover from the grantor any damages that may be awarded in 
the latter's name, and paid to him by the city by reason of the condemnation, and the 
grantor will not be permitted to prove by parol that he reserved the damages at a date 
prior to the execution of the deed. Bailey v. Briant, 117 Ind. 362, 363. 

If the owner of land dedicates a street to the city, and before the street is opened the 
land is conveyed to one with notice of the dedication, such grantee will not be entitled 
to damages. Parry v. City of Richmond, 27 Ind. 66. 

Widening' street— Resolution.— It is not necessary that a resolution of the common 
council of a city for the widening of an existing street shall describe the street by course 



299 OPENING AND VACATION OF STREETS. § 225 

and distance, or shall state of Avliat it consists, or from whom or whence taken ; but it is 
enough if the location and extent of the proposed change be well stated. Hays v. City 
of Vincennes, 82 Ind. 178, 181. 

Jiidg'meiit and mort§ag*e liens— Land condemned.— Land condemned and taken 
by a city for a street, upon which there is a judgment lien, is discharged from the lien 
of the judgment ; the holder of a simple judgment lien thereon is not entitled to notice 
of the proceedings, and can not redeem therefrom ; but a mortgage lien is not so dis- 
charged when the mortgagee is not a party to the proceedings. Gimbel v. Stolte, 59 
Ind. 446; Sherwood v. City of Lafayette, 109 Ind. 411; Jenkins v. Newman, 122 Ind. 
99; Elliott Roads and Streets, pp. 235, 237. 

Mortg^ig'e— Eminent domain.— The mortgagee of land which is taken by a city for a 
public street is an owner within the meaning of the statute governing condemnation 
proceedings, and may recover from the city the damages awarded, notwithstanding the 
amount has already been paid to the mortgagor. Sherwood v. City of Lafayette, 109 
Ind. 411. 

Opening street— Injunction — Pleading".— In a suit to enjoin a city from opening a 
street through the plaintifi's land until the assessment of damages is paid, an answer 
alleging that the land described in the complaint was, at the time the proceedings to 
appropriate the same were commenced, an open and public street and highway of said 
city ; that the only interest the plaintiff had in said land was the ownership of the fee, 
subject to a perpetual easement of a street and highway over said land ; that the pro- 
ceedings to appropriate said land were taken on behalf of the city by mistake and in 
ignorance of the fact that said land was already a part of said street, but not alleging 
facts showing that the ground appropriated was a street by user, by grant, by dedication 
or appropriation, or that it was established in any manner know^n to the law, is insuf- 
ficient. City of Elkhart v. Simonton, 69 Ind. 196. 

225. Proceedings in couiidl. — 26. Before any matter of the open- 
ing, laying out, or altering of any street, alley, highway, or v/ater- 
course, or of the vacation thereof, shall be referred to the city com- 
missioners, the common council shall refer the matter to an appro- 
priate committee, who shall examine the matter, and report at the next 
meeting of the common council upon the expediency of so referring ; 
and if the common council shall determine, by a two-thirds vote, 
to submit the said matter to the commissioners, it shall be so ordered, 
and shall thereupon be referred to said commissioners, as hereinbefore 
provided; but no such matter shall be submitted unless so ordered by 
a two-thirds vote of such common council. In case any commissioner 
shall be interested, he shall be incompetent; and in case a number are 
interested, so great as not to leave a majority competent, the council 
may appoint, at any regular meeting, commissioners pro tempore. 
Any person interested in such proceedings, or whose property is af- 
fected, may present his objections, and if the commissioners be found 
interested, commissioners pro tempore shall be appointed. R. S. 1894, 
§ 3630. 

Reference to city commissioners.— When a city undertakes to lay out a new street 
or alley, or to alter an existing one, the matter must be referred to the city commis- 
sioners for the assessment of benefits and damages ; and if it fails to do so, such city 
will be liable to persons whose property is injured for the damages sustained. City of 
Anderson v. Bain, 120 Ind. 254, 259. 

Nunc pro tunc entry. — A nunc pro tunc entry upon the minutes of a common coun- 



§ 226 CITIES. 300 

cil, to supply the omission of a former entry of the resolution submitting to the city 
commisioners the question of widening a street, to show that the resolution was 
adopted by a two-thirds vote, as required by the above section, is binding upon a 
purchaser of property in the interval between the original and the nunc pro tunc entry, 
where the original entry did not affirmatively show a non-compliance with the statute. 
City of New Albany v. Endres, 143 Ind. 192. 

Commissioner's competency. — Persons financially interested in the opening of a 
street, or related to persons affected by such opening, are not qualified to act as com- 
missioners to assess benefits and damages in opening such street. Bradley v. City of 
Frankfort, 99 Ind. 417, 418; Bass v. City of Ft. Wayne, 121 Ind. 889, 390. 

Waiver of objections. — Persons notified of the meeting of the commissioners, and 
having knowledge of the disqualification of any commissioner, must make their objec- 
tions before the commissioners, or the same will be waived. Bradley v. City of Frank- 
fort, 99 Ind. 417, 421; Board, etc., v. Justice, 133 Ind. 89, 95. 

Renewal of objections. — If his objection is overruled, or not reported to the com- 
mon council, or disregarded by the common council, it may be renewed and tried on 
appeal in the circuit court. Bradley v. City of Frankfort, 99 Ind. 417, 423. 

[Acts 1879 S., p. 96. In force March 31, 1879.] 

226. Duty of coiMmissioners. — 2. Said commissioners shall meet 
upon the request of the common council, and it is made the duty of 
the city clerk to notify each of them of such request, and to designate 
therein the time and place of meeting, which notice shall be served by 
the city marshal at least fifteen days prior to the time designated, either 
by reading or by leaving a copy at the usual places of residence of 
said commissioners. They shall meet at the time and place designated, 
and examine the property sought to be appropriated, and shall also view 
and examine the real estate in the vicinity thereof to be benefited or 
injured by such proposed improvement. The}^ shall, within ten days 
after they have concluded such examination, file in the office of the city 
clerk a written report describing the property to be appropriated, and 
the name of the owner, if it be known, (and if unknown a description 
of all real estate to be damaged thereby, if any there be ) . In cases when 
no part thereof is taken, and the name of the owner, if it be known, 
(and if unknown stating the owner's name is unknown), a description 
of all real estate beneficially affected by said change or improvement, 
stating the owner's name if known (and if unknown showing it to be 
unknown). And upon the filing of such report with such clerk, said 
commissioners shall also file with such clerk a notice of the time and 
place when they will meet to estimate the injuries and benefits to the 
property sought to be appropriated, and to estimate the benefits and dam- 
ages to all real estate injuriously or beneficially affected by such change 
or improvement, which meeting shall be held not less than fifty nor 
more than sixty days from the time of the filing of such report and no- 
tice. And upon the filing of such report and notice, the clerk shall issue 
a written or printed notice to the person whose lands are proposed to be 
appropriated and to those whose property it is proposed to benefit or 
damage or against whom or in favor of whom sluj assessment is to be 
made. If such person reside in the county w^here said city is situated, 
notice shall be served upon him, either by reading or leaving a copy 



SOI OPENING AND VACATION OF STREETS. § 226 

thereof at his last and usual place of residence, at least ten days before 
the time designated for such meeting. In case the land-owner be un- 
known, or be not a resident of the county, or in case the residence of 
the land-owner be unknown, then notice shall be made by publication, 
once in each week, in a newspaper of general circulation published in 
said city, for three consecutive weeks. The last publication of notice 
must be at least fifteen days prior to the time designated for such 
meeting. It shall be the duty of the marshal to serve such notice, 
and make due return of service of such notice to the city clerk; and 
the city clerk shall obtain proof of publication as provided by law, and 
preserve such proof, as also the notice returned by the marshal. The 
notice to be issued by the clerk shall state, generally, the character of 
the proposed change, alteration, or improvement, but need not de- 
scribe the proposed change or improvement particularly, and need not 
describe the property to be affected; but if it be sufficient to inform 
the person of the general nature or character of the change, or if the 
general direction and character of the proposed route or line of the 
proposed street, alley, highway, or water-course to be laid out, 
changed, or improved, and the time and place of such meeting, it 
shall be valid and effectual. If an interested person shall appear 
before the commissioners, he shall not thereafter be permitted to aver 
either a defect or want of notice. It shall be the duty of the marshal 
to serve all notices and subpenas issued by the city clerk or the com- 
missioners. R. S. 1894, § 3631. 

Notice of meeting' of commissioners— Time andplace— Adjournments.— The notice 

to parties interested of the meeting of commissioners must show the time and place of 
the meeting. A party having notice of the first meeting is bound to take notice of an 
adjournment. City of Logansport v. Pollard, 50 Ind. 151 ; Caskey v. City of Greens- 
burgh, 78 Ind. 233. 

Same — Notice — Jurisdiction. — Where the land-owners affected by such proceedings 
are notified of the time, place and purpose of the meeting of the city commissioners 
they are within the jurisdiction of the city authorities, and are charged with knowledge 
of every act done up to the confirmation of the report of the commissioners. Eissing v. 
City of Ft. Wayne, 137 Ind. 427. 

Collateral attack.— The proceedings for the opening of a street are not subject to 
collateral attack by the property owner. Powell v. City of Greensburg, 150 Ind. 148. 

Notice— Objection— Waiver.— If a person is served with notice of the second meeting 
of the commissioners, and before an assessment against his property has knowledge of 
the incompetency of any commissioner, he must make an objection then and there. If 
he does not, he will be deemed to have waived it. Bradley v. City of Frankfort. 99 
Ind. 417; Washington Ice Co. v. Lay, 103 Ind. 48, 51; Carr v. Boone, 108 Ind. 241; 
Eobinson v. Rippey, 111 Ind. 112. 

If his objection is overruled, or not reported to the common council, or disregarded 
by the common council, it may be renewed, and tried on appeal in the circuit court. 
Bradley v. City of Frankfort, 99 Ind. 417. 

Witnesses. — At the second meeting of the commissioners they may issue subpenas 
for witnesses and hear evidence upon the questions before them. Bradley v. City of 
Frankfort, 99 Ind, 417. 



§ 227 CITIES. 302 

[Acts 1875 S., p. 17. In force March 17, 1875.] 

227. Hearing and proceedings. — 3. Said commissioners, or a ma- 
jority of them, shall meet at the time and place designated, and shall 
proceed to hear and determine all matters concerning the lajang out 
of the street, alley, highway, or water-course so mentioned in the 
notice issued to them. They shall have power to administer oaths, to 
hear evidence, to examine witnesses, and to adjourn from time to time. 
They shall also have power to issue subpenas for witnesses, and require 
the marshal to serve the same; and shall have power to require the 
city engineer to render them such assistance as they may require. A 
majority of such commissioners may act, determine, and make valid 
and effectual reports; and they shall have power to attach and punish, 
by fine, witnesses who fail to appear when properly subpenaed. R. S. 
1894, § 3632. 

228. Assessment of damages and benefits. — 4. It shall be their 
duty to examine the property sought to be appropriated, and to esti- 
mate its value; and they shall also view the real estate in the vicinity 
thereof, and estimate both the injuries and benefits thereto. In as- 
sessing and awarding damages and benefits, they shall not be confined 
to real estate upon or along the line of the proposed change or im- 
provement, but shall estimate benefits and damages to all real estate 
injuriously or beneficially affected. They shall also consider and de- 
termine what part, if any, of the expense of such change or improve- 
ment ought to be paid out of the general fund of the city. They shall 
assess upon each lot of land belonging to the same person the damages 
alone [done] thereto, and shall also assess all benefits which may ac- 
crue to real estate in the vicinity and which may be beneficially af- 
fected; and shall also assess the value of real estate actually appropri- 
ated, and the benefits resulting to the part, if any there be, of any lot 
or parcel of land not taken, as v\^ell as to the other real estate bene- 
fited but of which no part is taken. R. S. 1894, § 3633. 

What damag'es assessable by commissioners— Street unprovement. — ^The city 
commissioners may assess damages accruing from the laying out or the altering of a 
street, but they have no power to assess damages resulting from the manner in which 
the street may afterwards be graded, or otherwise improved, and for damages of the 
latter kind the city does not become liable on account of its failure to refer the matter 
of the improvement to the city commissioners. City of Anderson v. Bain, 120 Ind. 254. 

Duty of commissioners. — The commissioners must estimate the value of the land or 
other property appropriated ; the part thereof, if any, to be borne by the city ; what 
real estate is benefited, specifying the same in parcels, with the name of the owner, if 
known, and the proportion of benefit or damage each would receive ; and report upon 
each of the specifications. There must be a substantial compliance with the require- 
ments of the statute. McKernanv. City of Indianapolis, 38 Ind. 223. 

Eailroad ri§"ht of way — Damag'es. — In extending a street across the right of way of 
a railroad company the damages are not limited to the value of the real estate actually 
taken, but the statute authorizes the awarding of all damages and their prompt pay^ 
ment. City of Terre Haute v. Evansville, etc., R. Co., 149 Ind. 174. See ante, § 218 n., 
Eminent Domain — Streets. 

Assessment oi benefits— Vicinity— Law and facts.— Whether land situated 3,200 feet 
or more from a proposed street improvement would be specially benefited by the im- 



303 OPENING AND VACATION OF STREETS. § 229 

provement, and whether the land was in the vicinity of such improvement, are proper 
questions to be submitted to the jury ; the court can not say, as matter of law, that the 
distance given is too remote for the land to be specially benefited, or to be in the vicinity 
of the improvement. Mock v. City of Muncie, 9 App. 536. 

Special benefits— Meaning- of .—Property is specially benefited, within the meaning 
of the law, when the proposed improvements would increase the value of the land, re- 
lieve it from a burden, or make it specially adapted to a purpose which enhances its 
value. Lipes v. Hand, 104 Ind. 503. 

Liability of city for damag-es- General fund.— While it is the duty of the city com- 
missioners to consider and determine what part of the expense incurred in opening a 
street ought to be paid out of the general fund of the city, and to designate the same 
in their report, yet if the common council receives and approves the report, without 
such part being designated, and orders the taking of the property to be appropriated, 
the city thereby undertakes the payment of all damages and expenses in excess of the 
benefits assessed, and the land-owner is immediately entitled to the same. City of 
Terre Haute v. Blake, 9 App. 403. 

Injunction— Irreg-ularities.— Injunction will not he against the opening of a street, 
if damages have been assessed and tendered ; and until the contrary appears, it will be 
presumed that the damages were assessed and tendered. Caskey v. City of Greens- 
burg, 78 Ind. 233. 

Same— Damag-es- Tender.— Where a city is about to take land for a street wrong- 
fully, under color of right, without assessment and tender of compensation, the owner 
may have an injunction. City of New Albany v. White, 100 Ind. 206 ; Town of Hardins- 
burg V. Cravens, 148 Ind. 1; Sidener v. Turnpike Co., 23 Ind. 623; Miller v. City of 
Indianapohs, 123 Ind. 196; Elliott Roads and Streets, pp. 295, 296. 

Injunction — Pleading-.— In a suit to enjoin a city from opening a street through 
plaintiff's land, until the assessment of damages is paid, if the city claims that the lands 
taken already constitute a public highway, the burden is upon the city to show how 
such highway was estabhshed. City of Elkhart v. Simonton, 69 Ind. 196. 

Complaint — Injunction — Quieting- title. — A complaint against a city and street con- 
tractors which alleges that the plaintiff is the owner of certain real estate, of which the 
defendants have unlawfully taken possession, and to which, without having condemned 
it, they are threatening to do irreparable damage by cutting down the trees and vines 
grown thereon by the plaintiff and by grading the land and making a street thereupon 
without leave or license from the plaintiff, with notice that she is the owner thereof, 
and which prays that her title be quieted to the same, and that the defendants be en- 
joined from further trespassing, is not a complaint to quiet title, but for injunction, and 
a trial by jury and a new trial as of right are properly refused. Miller v. City of In- 
dianapohs, 123 Ind. 196. 

Same.— Where by proceedings under §§ 3623, 3629, et seq., R. S. 1894, a city has ex- 
tended a street across a railroad's right of way, switch yards and tracks, but in such pro- 
ceedings no notice was ever given to the railroad company, an injunction ^dll lie to pre- 
vent the city from opening the street through such property. City of Fort Wayne v. 
Fort Wayne, etc., R. Co., 149 Ind. 25. 

229. Keport. — 5. The said commissioners shall, within ten days 
after they have concluded their investigation, file in the office of the 
city clerk a written report, wherein they shall report upon the follow- 
ing matters, to wit: 

First. The value of the property to be appropriated, describing it, 
and the name of the owner, if it be known, (and if unknown, stating 
that the owner's name is unknown). 



§ 230 CITIES. 304 

Second. The damages to property, if any there be, in cases where 
no part thereof is taken. 

Third. The benefits to real estate beneficially affected by said 
change or improvement, describing the real estate, stating the owner's 
name, if known, (and if unknown, showing it to be unknown). 

Fourth. The general character and direction of the proposed im- 
provement or change, as to length, direction and width. 

Fifth. The amount, if any, to be paid by the city. R. S. 1894. 
§ 3634. 

Description of property— Names of owners.— The report of the city commissioners 
must be certain and definite in respect to the names of owners and vahie and descrip- 
tion of property taken as well as in respect to that upon which damages or benefits have 
been assessed. For a description held sufiicient see Hays v. City of Vincennes, 82 Ind. 
178. 

Effect of report— Commissioners not a court. — The report of the city commissioners 
has no binding force and none of the attributes of a judgment, until it has been acted 
upon by the common council in strict conformity with the requirements of the statute. 
Their powers and duties are quasi judicial and are similar to the powers and duties of 
an ad quod damnum jury. City of Elkhart v. Simonton, 71 Ind. 7; City of Terre Haute 
V. Blake, 9 App. 403, 406; City of Terre Haute v. Evansville, etc., E. Co., 149 Ind. 174. 

230. Keport.- — 6. The character of the change or improvement 
shall be stated with reasonable certainty; and the real estate for which 
damages are awarded, and that upon which benefits are assessed, shall 
be described with like certainty in the report of the commissioners. In 
cases where both benefits and damages shall be assessed upon the same 
real estate, or to the same person or persons, the benefits, if less than 
the damages, shall be deducted from the assessment of damages. In 
assessing benefits, the said commissioners shall consider, not only the 
real estate through which the proposed improvement is to pass, but 
shall consider all such as is benefited and which is in the vicinage. 
R. S. 1894, § 3635. 

231. Report as to infants and insane. — 7. In case any land- 
owner interested in or affected by such proceedings shall be of un- 
sound mind, or shall be an infant, the commissioners shall certify 
the same to the proper court; and said court shall, thereupon, appoint 
a guardian for such infant or person of unsound mind; and thereupon 
the commissioners shall cause five days' notice to be given each 
guardian, Vv^ho shall, thereupon, appear and protect the interests of his 
ward. In case such infant or person of unsound mind have a guardian 
duly appointed and qualified, then notice may be served upon such 
guardian, as provided in the second section hereof [R. S. 1894, § 3631] ; 
and such notice shall be valid and effectual. If there be a defect of 
notice or failure of notice as to one or more interested persons, such 
failure or defect shall not affect such proceedings, except in so far as 
they may touch the interests or property of such person or persons 
themselves, and shall not avail any other person concerned in such 
proceedings. Upon the application of persons whose lands or property 
shall have been assessed, but who have not had notice (which they 



305 OPENING AND VACATION OF STREETS. § 232 

must affirmativel}^ show), the city clerk shall notify said commission- 
ers, who shall meet upon their own motion, hear and determine the 
claims of such persons (to whom five days' notice shall be given), and 
report to the council. In case they are entitled to damages which 
have not been assessed, the same shall be paid out of the city treasury; 
and in case the land shall have been assessed with benefits, and the 
commissioners deem the assessment just, the original assessment shall 
be deemed valid and effectual, and shall be enforced as originally 
made. R. S. 1894, § 3636. 

232. Action of council on report. — 8. If the common council, 
■within twenty-eight days after the filing of said report, shall, by a vote 
of two-thirds of the members thereof, determine to make the appropri- 
ation of the real estate for such improvement, they shall enact a reso- 
lution accepting said report, and requiring the city clerk to deliver a 
certified copy of so much thereof as assesses benefits and damages 
upon real estate, and in which the real estate so assessed is described, 
to the city treasurer. The common council may refer back the mat- 
ters reported upon to said commissioners, with such suggestions as 
they may deem proper; and the commissioners shall meet and proceed, 
as provided in section 23 of this act [R. S. 1894, § 3652]. R. S. 1894, 
§ 3637. 

Discontinuance of proceeding's.— The right to discontinue the proceedings exists as 
long as the amount of the compensation to the land-owner remains undetermined, but 
when once the compensation has been determined, the proceedings can not be discon- 
tinued. The mere making of the estimate of the benefits and damages by the city com- 
missioners and reporting the same to the common council, is not such a determination; 
but when their report is accepted and approved, by an order making the appropriation, 
the compensation is determined. City of Terre Haute v. Blake, 136 Ind. 636; City of 
Terre Haute v. Blake, 9 A.pp. 403, 408 ; EUiott Roads and Streets, p. 209 ; 2 Dillon Munic. 
Corp., § 608. See Brokaw v. City of Terre Haute, 97 Ind. 451; City of Lafayette v. 
Shultz, 44 Ind. 97. 

Damag-es— Liability of city for— When rlg-hts become vested. — After the council 
has accepted the report of the commissioners and made the proper order for the appro- 
priation of the land necessary for the street, the right of the land-owner to the damages 
assessed becomes absolute. The council can not, therefore, set aside the assessment, 
nor, by refusing to open the street, avoid the payment of such damages. City of La- 
fayette V. Schultz, 44 Ind. 97. See Brokaw v. City of Terre Haute, 97 Ind. 451 ; City of 
Terre Haute v. Blake, 9 App. 403; City of Terre Haute v. Blake, 136 Ind. 636. 

Vested rig-hts—Damag-es— Effect of appeal.— The right of the property owner to the 
damages awarded becomes vested when the council has accepted the report of the com- 
missioners and made the proper order for the appropriation of the land necessary for 
the street, but if the property owner institutes an appeal from such proceedings he 
thereby voluntarily abandons the right which had attached in his favor by virtue of the 
confirmation of the assessment. City of Terre Haute v. Blake, 136 Ind. 636; City of 
Terre Haute v. Blake, 9 App. 403. 

Accepting* report of commissioners— Conclusiveness of. — The adoption of a resolu- 
tion by the common council accepting the report of the city commissioners, is conclusive 
as to the question of pubHc utility. Holden v. City of Crawiordsville, 143 Ind. 558. 

The mere acceptance of the report of the commissioners, without further action as 
prescribed by the above section, will not be a confirmation of the benefits or damages 
CiT. AND To.— 20 



§ 233 CITIES. 306 

assessed and will not make the action of the commissioners and common council final. 
City of Elkhart v. Simonton, 71 Ind. 7. 

Eeferring- back report to commissioners— What reference is for— Assessment of 
additional property invalid. — A reference of the rejjort of the commissioners back to 
them by the common council is for the purpose of readjusting or changing the assess- 
ments, or amending or changing the report by the commissioners as to the persons, or 
property of the persons, previously notified of the proceedings, and it does not contem- 
plate any action on the part of the commissioners which will affect other persons and 
property. An assessment of additional property by the commissioners upon such a 
reference is without authority of law, and void. City of Logansport v. Shirk, 129 Ind. 
352. 

233. Duty of clerk — Lien. — 9. It shall be the duty of the city 
clerk to deliver a certified copy of said report, as provided in the pre- 
ceding section, to the city treasurer, and to copy the entire report into 
the records of the common council, and to carefully file and preserve 
the original. The benefits assessed shall be a complete and valid lien 
upon the real estate described as assessed, from and after the time the 
aforesaid resolution is adopted accepting such report, and filing a copy 
thereof in the office of the recorder of the county; and such lien shall 
be valid and enforceable against subsequent purchasers, and shall 
have priority over all other liens, except those for state taxes. E,. S. 
1894, § 3638. 

City treasurer — Notice — Estoppel. — Where the city treasurer, in giving notice of the 
"assessment, the date of filing and the amount assessed," states in such notice the time 
when the common council approved the report, he exceeds his duty, and the officer and 
the act both being public, and the notice being simply to require the land-owners to pay 
their assessments, the city is not estopped, upon appeal, from showing the true date of 
the approval of the report, the same not having been correctly given in the notice. 
Kissing v. City of Ft. Wayne, 137 Ind. 427. 

234:. Payment of damages. — 10. The common council may de- 
termine to pay out of the general funds of the city the total amount of 
damages assessed, or any part thereof; and in case this shall be or- 
dered and done, all benefits collected shall be paid into the treasury of 
the city, and shall belong to such city. In case the common council 
deem it proper to delay until such benefits are collected, they shall 
order the proceedings delayed until such benefits shall be collected: 
Provided, They shall not cause a delay beyond one year, except in 
cases where the delay is caused by appeal, injunction or other legal 
proceedings. R. S. 1894, § 3639. 

Deferred payment— Dismissal of proceeding's.— A provision of a resolution of the 
common council approving the final report of the city commissioners, that the owner's 
damages shall not be paid until after the collection of assessments for benefits, does not 
warrant a dismissal of the proceedings, as the council is authorized to delay the opening 
until the benefits are collected. In the absence of such provision the damages assessed 
are due and collectible from the city as soon as the appropriation of the land is made. 
Holden v. City of Crawfordsville, 143 Ind. 558; City of Terre Haute v. Blake, 136 Ind. 
636 ; City of Terre Haute v. Blake, 9 App. 403. 

Same. — If the proviso for delay in such case is sufficient under the statute, then the 
taking of the land would be postponed ; while if the proviso was insufficient there would 



307 OPENIXG AND VACATION OF STREETS. § 235 

be no delay, and appellant'^ damages ^yould be at once due and payable. Holden v. 
aty of CraATfordsvilie, 143 Ind. 558. 

235. Collection of assessments. — 11. Within ten days after the re- 
ceipt of the certified copy of the report, as provided in sections 8 and 9 
of this act [R. S. 1894, §§ 3637, 3638], the city treasurer shall, in 
cases where the owners of the lands assessed are residents of the city, 
make demands of them, personall}^, for the amount of the benefits as- 
sessed, or shall leave at their residence written notices specifying the 
date of the filing of the report and the amount of the benefits assessed, 
and demanding payment of the amounts assessed; but said notice need 
not describe the real estate assessed nor the character of the improve- 
ment or change, and shall be sufficient if it notify the person of the 
assessment, the date of filing, and the amount assessed. In case the 
person or persons owning the lands should be non-residents of the 
city or unknown, or their residence be unknown, then the treasurer 
shall publish, for three wrecks consecutively, in a paper of general cir- 
culation, a notice, specifying therein the date of the filing of the re- 
port, the description of the real estate assessed, the amount assessed, 
the names of the owners, if known, (and, if unknown, stating them 
to be unknowm). In case the persons notified personally, or by writ- 
ten notices left at their residences, shall fail to pay such assessments 
w^ithin three months thereafter, the treasurer shall proceed to collect 
such assessments as hereinafter provided; and if the persons notifixcd 
by publication shall fail to pay such assessments within one month 
after the last publication, the city treasurer shall proceed to collect 
such assessment as herein provided. The said assessments shall be 
collected and enforced in the same manner as assessments for street 
improvements; and the provisions of the law in force at the time upon 
the subject of the collection of assessments for street improvements or- 
dered by the common council shall govern the treasurer, and Jie shall 
proceed in accordance therewith; except in this, that no precept shall 
be required, and that he shall proceed upon the certified copy of the 
report of the commissioners; and with the further exception, that no 
other or further demand than that herein provided for shall be made. 
It is hereby made the duty of the treasurer to keep a proper record of 
all his proceedings. R. S. 1894, § 3640. 

236. Report of collections. — 12. It shall be the duty of the city 
treasurer to report to the common council the amount received by him 
upon such assessments at their regular meeting next after such re- 
ceipt. He shall pay the damages only upon warrants ordered by the 
common council and drawn by the city clerk. R. S. 1894, § 3641. 

237. Private corporations. — 13. In case the common council pro- 
pose to appropriate a highway, bridge, or other property owned by a 
private corporation, or to assess benefits or damages upon propert}^ so 
owned, the clerk shall give notice to such corporation ; and the said 
notice shall be served upon any oflicer thereof residing in such city : 
and if there be no officer residing in tlie city, then upon any agent 
residing therein or doing business in sucli city for such corporation. 



§ 238 CITIES. 308 

When a highway or bridge within a city, owned by a private corpora- 
tion, is abandoned, or suffered to be out of repair so as to incom- 
mode or endanger travelers, the commissioners aforesaid are required 
to consider these facts in estimating the injury, if any, accruing from 
its use or appropriation for public purposes by the city, and may also 
estimate whatsoever it may cost such city to make the bridge or high- 
way safe and free from damage. R. S. 1894, § 3642. 

238. Appeal. — 14. If any person having an interest in the lands 
affected by such proceedings shall deem himself aggrieved thereby, he 
may appeal to any court of general jurisdiction in the county, within 
thirty days after the confirmation of said report by the council. In 
such case, the person asking the appeal must designate the court to 
which he appeals, and file a bond within thirty days from the con- 
firmation of said report, conditioned for the pa^anent of all damages 
and costs, which may accrue by reason of such appeal should he not 
prosecute such appeal to effect. Upon such appeal, the regularity of 
the proceedings of the commissioners, and the questions as to the 
amount of benefits or damages assessed may be tried; but such appeals 
shall not prevent such city from proceeding with the proposed appro- 
priation, nor from making the proposed change or improvement. The 
city clerk shall, upon the filing of a bond with sufficient surety, con- 
ditioned as aforesaid, make a transcript of the proceedings of the 
council requesting the meeting of the commissioners, the notice to the 
person appealing, the proceedings and the report of the commission- 
ers, and the action of the common council thereon, upon the second 
day of the term. After filing the said transcript (and of which filing 
the appellant shall notify the attorney of the city, in writing), the 
appellant shall, in writing, state specifically the grounds of his objec- 
tion to the proceedings of the common council and commissioners; 
and [no] other questions shall be tried or heard, except such as are 
with certainty to a common intent presented by the aforesaid written 
statement filed by such appellant. If the transcript shall show that a 
majority of such commissioners were present at the meeting in which 
w^ere had the proceedings appealed from, then no question shall be 
considered or tried concerning the request of the common council to 
the commissioners, nor as to the character of the notice or manner of 
serving it upon said commissioners. The transcript of the proceed- 
ings of the common council and commissioners shall be considered as 
the complaint; and the written statement, to be filed by the appellant 
as aforesaid, shall be in the nature of an answer or demurrer. Issues 
of law and of fact may be formed, tried and determined as in other ac- 
tions at law. The question as to whether notice was given others, or 
as to whether proper assessments were made in favor of or against 
persons other than the appellant, shall not be tried; nor shall any 
question be tried which does not directly affect the property or right 
of the person or persons who take the appeal as aforesaid. No ques- 
tion shall be tried concerning the regularity of the appointment of the 
commissioners, their qualification or competency, unless the appel- 



809 OPENING AND VACATION OF STREETS. § 238 

lant, by answer duly verified, shall put such matters in issue; but of 
their appointment, competency and qualification the records of the 
common council shall be prima facie evidence; and it shall only be 
necessary for the city clerk, in the transcript to be certified by him as 
aforesaid, to recite that the commissioners were duly appointed and 
qualified, without in any w^se setting out their appointment, qualifi- 
cation or competency in such transcript. If, upon such appeal, the 
report of the commissioners as to the benefits or damages be greatly 
diminished or increased, the city may, upon payment of all costs, dis- 
continue such proceedings. R. S. 1894, § 3643. 

Practice on appeal. — This act is amendatory and supplemental to the general law 
concerning cities of INIarch 14, 1867, and the practice on appeal in proceedings for the 
opening and widening of streets is regulated by said amendatory and supplemental 
act. Hays v. City of Vincennes, 82 Ind. 178. 

Prior to the enactment of this statute, under § 66 of the general laws for the in- 
corporation of cities, an appeal would lie to the circuit court from the common coun- 
cil on the assessment of damages in the location of streets. Hamilton v. City of Ft. 
Wayne, 73 Ind. 1. 

Api>eal — Dismissal. — An appeal from proceedings to widen a street must be taken 
within thirty days after the confirmation of the report of the city commissioners by the 
common council ; and where the notice given by the city treasurer "of the assessment, 
the time of filing and the amount assessed," stated the report was filed November 10, 
1891, and accepted by the common council November 14, 1891, when in fact the report 
was approved November 10, 1891, an appeal taken December 14, 1894, was not taken in 
the prescribed time, and was properly dismissed. Kissing v. City of Ft. Wayne, 137 
Ind. 427. 

Same — Estoppel — City. — The city treasurer, in stating in such notice the time when 
the common council approved the report, exceeded his duty, and the officer and the act 
]x>th being public, and the notice being simply to require the land-owners affected by 
the proceedings to pay their assessments, the city was not estopped from showing the 
appeal came too late. Kissing v. City of Ft. Wayne, 137 Ind. 427. 

Same.— The fact that the city authorities furnished the appellants with a transcript 
of the record for appeal, does not estop the city from showing that the appeal came too 
late. Kissing v. City of Ft. Wayne, 137 Ind. 427. 

Same — Notice — Jurisdiction. — Where the land-owners affected by such proceedings 
were notified of the time, place and purpose of the meeting of the city commission- 
ers, they were within the jurisdiction of the city authorities, and are charged with 
knowledge of every act done up to the confirmation of the report of the commissioners. 
Kissing v. City of Ft. Wayne, 137 Ind. 427. 

Conclusiveness of action of council— Appeal.— The adoption of a resolution by the 
common council of a city, accepting the report of the city commissioners in a proceed- 
ing for the opening of a street or alley, is conclusive as to public utility under this sec- 
tion. Holden v. City of Crawfordsville, 143 Ind. 558. 

Opening" street— Improvement proceeding's— Appeal from. — Where an appeal is 
taken from proceedings to improve a street, the city is not compelled to stop the work 
while the appeal is pending; and, in such case, if, on appeal, the city prevails, the 
work may be finished under the original proceedings, but if the property owner is suc- 
cessful, and the court decides that there is some irregularity in the proceedings, the city 
may correct the same or begin anew, according to the determination of the court on 
appeal. If, however, the court, on appeal, adjudges the entire proceedings void, and 
no appeal is taken from such judgment, and the city does not proceed anew under the 
statute, it amounts to an abandonment of the appropriation of the land, and the title to 



§ 238 CITIES. 310 

the property reverts to the owner. Morris v. Watson, 8 App. 1; City of Lafayette v. 
Shaltz, 44 Ind. 97. 

Property owner's vested rig-lit— Effect of appeal.— By an appeal the property owner 
voluntarily abandons the right w^hich had attached in his favor by virtue of the con- 
firmation of the assessment, and the provision of the statute that the city, in case of 
appeal, if the benefits or damages assessed by the commissioners are greatly diminished 
or increased, may, upon payment of all costs, discontinue the proceedings, only secures 
to the city a like privilege to abandon the whole proceedings. City of Terre Haute v. 
Blake, 136 Ind. 636, 638. 

Appeal — Jurisdiction. — The circuit courts of this state are courts of general jurisdic- 
tion, and, under § 66 of the general act for the incorporation of cities, an appeal would 
lie to the circuit court from a common council of a city on the assessment of damages in 
the location of streets. Hamilton v. City of Ft. Wayne, 73 Ind. 1. 

Same— Objections— Regularity of appointment of commissioners, etc.— If a person 
is served with notice of the meeting of the commissioners, and at such meeting objects 
to the competency of a commissioner, and such objection is overruled, or not re- 
ported to the common council, or disregarded by the common council, it may be re- 
newed, and tried on appeal in the circuit court. Bradley v. City of Frankfort, 99 Ind. 
417. 

Same. — No question can be made in the circuit court as to the regularity of appoint- 
ment of commissioners, except by a verified answer. Bradley v. City of Frankfort, 99 
Ind. 417. 

Same. — If the incompetency of a commissioner is known at the hearing for the assess- 
ment of benefits and damages, objections to his acting must be then raised. Bradley v. 
City of Frankfort, 99 Ind. 417. 

Same. — No objection can be raised on appeal on account of the commissioners not 
being sworn. Caskey v. City of Greensburg, 78 Ind. 233. 

Transcript — Demurrer. — A demurrer to the transcript for want of sufficient facts is 
not permissible on appeal, but the specific grounds of objection, if apparent on the face 
of the record, must be stated in the demurrer, and matters of fact not so apparent must 
be pleaded. Hays v. City of Vincennes, 82 Ind. 178; Powell v. City of Greensburg, 
150 Ind. 148. 

A demurrer to the complaint on the ground that the court had not sufficient jurisdic- 
tion to try the cause is not sufficient. Powell v. City of Greensburg, supra. 

Answer — Demurrer. — A statement filed for answer which is sufficient to present an 
issue in other actions at law is sufficient in proceedings under this section ; and when it 
is stated in such answer that appellant is dissatisfied with the damages as assessed, and 
demands an increased amount of damages, the answer will be sufficient as against a de- 
murrer. If a more specific answer is desired it should be sought by motion to make 
more specific. City of Decatur v. Grand Rapids, etc., Co., 146 Ind. 577. 

Transcript— Complaint— Recitals in transcript— Inconclusiveness of.— Upon ap- 
peal the transcript constitutes the complaint, and the appellant must state specifically 
in writing the grounds of his objection to the proceedings of the common council and 
city commissioners, and no other question can be tried or heard, and issues of law and 
of fact may be found, tried and determined as in other actions at law. An issue of fact 
may be raised by an objection that the resolution to refer the matter of opening the 
street to the commissioners was not adopted by a two-thirds vote of the common coun- 
cil, as required by law. The recitals in the transcript to the contrary are not conclu- 
sive. City of Logansport v. Shirk, 129 Ind. 352; City of Decatur v. Grand Rapids, etc., 
Co., 146 Ind. 577. 

Dismissal after appeal— Costs.— The city may, after an appeal, dismiss all proceed- 
ings on payment of costs, though the city may have taken possession of the real estate 
sought to be appropriated. Brokaw v. City of Terre Haute, 97 Ind. 451. See City of 



Bll OPENING AND VACATION OF STREETS. § 239 

Terre Haute v. Blake, 9 App. 403; City of Lafayette v. Schultz, 44 Ind. 97; Indiana, 
etc., R. Co. V. Allen, 113 Ind. 308. 

Appeal— Dainag-es— Costs.— Where on an appeal from a street assessment allowing 
damages, but assessing an equal amount of benefits, a land-owner had appealed to the 
circuit court, and on trial the damages and benefits were both increased in an equal 
amount, the appellant was not entitled to his costs in the circuit court. Lake Erie, 
etc., R. Co. V. City of Kokomo, 130 Ind. 224. 

A property owner can not be heard upon appeal to complain that the commissioners 
have omitted to include and assess in their report property belonging to persons other 
than appellants. Powell v. City of Greensburg, 150 Ind. 148. 

239. IS'o iiijimction. — 15. If the commissioners make a report to 
the common council, as herein provided, no injunction shall lie to 
restrain proceedings, unless the common council shall proceed to 
appropriate property upon which damages have been assessed, with- 
out first causing the same to be paid or tendered; but all other ques- 
tions shall be raised and tried by appeal in cases where damages have 
been assessed, paid or tendered. R. S. 1894, § 3644. 

Injunctioil ag-alnst opening", — This section forbids an injunction against the opening 
of a street in a city if damages have been assessed and tendered. Caskey v. City of 
Greensburg, 78 Ind. 233, 236. 

Prior to the enactment of this act, under the 86th section of the act of 1867 for the in- 
corporation of cities, then in force, an injunction would lie to prevent the common coun- 
cil from enforcing an illegal order made by it for vacating a street. Spiegel v. Gans- 
berg, 44 Ind. 418. 

An injunction will not lie against the opening of a street for irregularities in the as- 
sessment of benefits and damages. Caskey v. City of Greensburg, 78 Ind. 233, 237. 

A city may be enjoined from taking land for a street without payment or tender of 
damages. City of New Albany v. White, 100 Ind. 206,209; City of New Albany v. 
Endres, 143 Ind. 192; City of Delphi v. Startzman, 104 Ind. 343; Elliott Roads and 
Streets, pp. 295, 297. 

240. Payment of damages. — 16. It shall be the duty of the city 
treasurer to pay or tender, or cause to be paid or tendered, the dam- 
ages assessed to the persons to whom assessed. Should such damages 
be claimed by different persons, and the treasurer be duly notified 
thereof, he shall, in writing, certify that fact to the attorney of the 
city, and it shall be the duty of the attorney to file a bill of inter- 
pleader in a court of general jurisdiction of the county, making par- 
ties thereto such claimants; and he shall also pay into the hands of 
the county clerk the damages aforesaid, and upon the determination 
of the question the money shall be paid to the party entitled thereto; 
but the damages, so far as concerns such city, shall be deemed paid 
from the time of their payment into the hands of the county clerk. It 
shall be the duty of the attorney of the city to take a receipt from the 
county clerk for the money so paid, which shall be by him delivered 
to the city treasurer, who shall file and preserve the same. It shall 
be the duty of said county clerk to safely keep such moneys, and if he 
go out of office^ to hand the same over to his successor. R. S. 1894, 
§ 3645. 



§ 241 CITIES. 312 

241. Tendering damages — Injunction.— 17. When the owners of 
the property are residents of the city the treasurer shall tender dam- 
ages to them at their places of business, or at their residences or domi- 
ciles, as he ma}^ elect. When such persons are unknown or are not 
residents of the city, or if the treasurer, upon diligent inquiry, can 
not ascertain the residence or place of business of a resident of the 
city, he shall publish in a daily newspaper, once in each week for two 
successive weeks, a notice specifying the amount in the treasury to be 
paid as damages, and stating the real estate upon which assessed and 
the readiness on his part to pay the same. Such notice, so published 
as aforesaid, if it state with reasonable certainty the amount of dam- 
ages and so describe the real estate upon which assessed, shall consti- 
tute a valid and effectual tender. In case an injunction is obtained 
because damages assessed have not been paid or tendered, the defend- 
ant may, at any time before the determination of the suit, pay or ten- 
der the damages assessed, with interest from the time the property is 
entered upon, seized or appropriated, and all accrued costs, and there- 
upon the injunction shall be dissolved. It shall be the duty of the 
attorney of the city, when an injunction is obtained upon the grounds 
aforesaid, to notify the city treasurer to ascertain the amount of dam- 
ages assessed, and interest thereon and costs accrued, and such amount 
shall be drawn from the treasury, and paid into the court from which 
such injunction issued. The said treasurer shall take from the clerk 
of the court in which such suit for injunction is pending, a receipt for 
the amount paid him, and from the time of such payment into 
court, as aforesaid, the city shall be absolved from liability, unless 
there are other valid grounds for an injunction. R. S. 1894, § 3646. 

Appropriation of land— Damages— Payment or tender.— Land can not be appro- 
priated for the purposes of a street unless compensation is first assessed and paid or 
tendered. City of New Albany v. Endres, 143 Ind. 193; Faust v. City of Huntington, 
91 Ind. 493 ; Holden v. City of Crawfordsville, 143 Ind. 558. 

Damag-es assessed— Tender— Payment— Appellate procedure.— A finding that dam- 
ages assessed by city commissioners on account of the appropriation of land for the 
widening of a street have not been tendered to the owner will not be deemed, on ap- 
peal, to negative payment of such damages, as an offer of payment may have been made 
and accepted, which, if unaccepted, w^ould not have been effectual as a tender, and 
such finding may have been intended merely to negative a tender, under the above 
section, which does not involve an actual offer of the money. City of New Albany v. 
Endres, 143 Ind. 192. 

Burden of proof — Tender — Payment. — The burden of negativing tender or payment 
of damages assessed for land appropriated for widening a street, the failure to pay or 
tender which is essential to an action to enjoin the proceedings, is upon the plaintiff in 
such action. City of New Albany v. Endres, 143 Ind. 192. 

242. Yacation of streets, etc. — 18. The common council shall 
have power to vacate streets, alleys, water-courses, public highways 
or squares, or any part or parts of either, whenever they may deem it 
expedient for the public interest. Whenever a petition shall be pre- 
sented by three reputable freeholders praying for any such vacation, 



313 OPENING AND VACATION OF STREETS. § 243 

the common council shall refer the petition and matters appertaining 
thereto to the city commissioners. The persons praying for such 
vacation shall serve notice by personal service or by leaving copy at 
the residences of persons interested, or by publication, if such person 
be a non-resident or his residence is unknown, once in each week for 
three weeks in a newspaper of general circulation published in said 
city, and shall show, by affidavit, due service of such notice. The 
said petitioners shall accompany their petition with a map or plat 
of the street, alley, highway or square, or the part or parts thereof 
which they propose to have vacated; and shall, on said map or plat, 
show the surrounding locality and shall also state the reasons upon 
which they base their petition for vacation. All the expenses of such 
proceeding shall be paid by said petitioners, unless the common coun- 
cil shall otherwise direct. [As amended. Acts 1885, p. 234. In force 
April 13, 1885.] R. S. 1894, § 3647. 

Vacation. — See notes to § 224, ante. 

Expediency — Common council. — It is for the common council and not the courts to 
decide upon the expediency of vacating a street or alley of a city. Spiegel v. Gansberg, 
44 Ind. 418 ; Holden v. City of Crawfordsville, 143 Ind. 558. 

Injunction. — An injunction lies to prevent the common council from enforcing an 
illegal order made by it for vacating a street. Spiegel v. Gansberg, 44 Ind. 418. 

243. Proceedings of commissioners. — 19. The city commission- 
ers shall meet pursuant to notice, and shall examine witnesses and 
hear evidence, and may administer oaths, and adjourn from time to 
time. They shall view the street, alley, highway, or square, or part 
thereof, proposed to be vacated, and shall determine what persons, if 
any, will be benefited thereby, and shall assess such benefits, if any: 
Provided, That only sufficient benefits shall be assessed to pay all the 
costs and expenses of such vacation proceedings. In case any prop- 
erty owner immediately upon the line of said street, alley, highway 
or square, or part thereof, sought to be vacated, who is directly in- 
terested therein, shall object to such vacation, the city commissioners 
shall report such fact to the common council. If the commissioners 
should consider that the necessary or proper parties have not been 
brought before them, they may require the petitioners to notify each 
person or persons as they may deem entitled to notice. [As amended. 
Acts 1895, p. 379. In force June 28, 1895.] Burns' Supp. 1897, 
§ 3648. 

Objections by outside OAvner. — The owner of land which is outside of, but abuts 
upon, the boundary line of such city, and upon the terminus of a street, is a stranger to 
the city and has no such interest in the street as makes him a competent objector to 
defeat the vacation thereof. House v. City of Greensburg, 93 Ind. 533. 

Same— Objection of adjacent lot-owner— Injunction.— The fact that the owner of 
an adjacent lot objects to the vacation of the street, does not give the owner of land 
outside of the city boundaries a sufficient cause of action to enjoin the proceedings of 
the city in a proposed vacation of the street. House v. City of Greensburg, 93 Ind. 533. 



§ 244 CITIES. 314 

244. Report. — 20. Within ten days after their determination, 
such commissioners shall file in the ofi&ce of the city clerk, who shall 
transmit the same to the common council, a report in writing, stating 
therein — 

First. The length, width, and location of the street, alley, highway, 
or square proposed to be vacated. 

Second. The value of the land upon which such street, alley, high- 
way, or square is situated. 

Third. The benefits to the persons desiring the vacation. 

Fourth. The names of property owners or persons who may object 
to the vacation of such street, alley, highway, square, or park, and the 
nature of their interest therein. R. S. 1894, § 3649. 

Essentials of report — Effect.— The report of the commissioners must be certain and 
definite in respect to the names of land-owners, the value and description of land, ben- 
efits, etc. The report has none of the attributes of a judgment until it has been acted 
upon by the common council in strict conformity with the requirements of the statute. 
Hays V. City of Vincennes, 82 Ind. 178 ; City of Elkhart v. Simonton, 71 Ind. 7 ; City of 
Terre Haute v. Blake, 9 App. 403. 

245. Action on report. — 21. The common council shall either re- 
fer the request back to the commissioners, or accept or reject the report 
within twenty-eight days after it is made to them. If they accept 
such report, they shall require the person against whom benefits are 
assessed to pay the same into the city treasury within twenty days 
thereafter. The common council shall have no power to order such 
vacation when objected to by property owners adjacent thereto. No 
person shall have any power or right to make any private use of an}'- 
street, alley, highway or square, or part thereof, ordered to be vacated 
until the benefits assessed have been fully and entirely paid, and 
unless paid within the time limited, the proceedings shall be wholly 
void. [As amended. Acts 1885, p. 234. In force April 13, 1885.] 
R. S. 1894, § 3650. 

246. Clerk's duty.— 22. It shall be the duty of the city clerk to 
keep, in a separate book, a record of all proceedings of the common 
council and city commissioners concerning the opening, laying out, 
changing and vacation of streets, alleys and highways, and to careful- 
ly and accurately index the same: Provided, That the common coun- 
cil may furnish him with printed blanks. R. S. 1894, § 3651. 

247. E-eference of report and proceedings.— 23. The common 
council, upon examination of any report of such city commission- 
ers, may refer the same back to the said commissioners for further 
action; and whe-n so referred, the common council shall designate 
at what time such commissioners shall meet to re-examine the mat- 
ters; and the commissioners shall meet upon that day; and of the ac- 
tion of the common council, and of the time of meeting, the parties 
interested shall take notice without any notice whatever being served 
upon them. The common council shall have power to refer any re- 
port whatever, under any provision of this act, back to said commis- 



315 OPENIXG AND VACATION OF STREETS. § 248 

sioners ; and when so referred, the commissioners shall, within ten 
days after the conclusion of their examination upon such reference, 
make a report as hereinbefore provided; and the common council shall, 
within twenty-eight days after the same is made, either approve or 
disapprove the same. The proceedings upon such second report shall 
be the same as that provided where the first made is accepted and ap- 
proved. When a second report is made, it shall be deemed final; and 
the common council must accept or reject the same within twenty-eight 
days after it is made to them. When any report is referred back to 
the commissioners, the common council may make such suggestions 
as they may deem proper, and may also call the attention of the com- 
missioners to errors and defects, if any there be, in such report; but 
such suggestions shall not be binding upon said commissioners. Upon 
such reference, the commissioners shall meet as hereinbefore provided, 
and all persons shall take notice thereof as hereinbefore provided; and 
said commissioners may amend or alter their said report as they may 
deem proper and just and shall consider any and all suggestions made 
to them by the common council. R. S. 1894, § 3652. 

Reference of report— Second report— Acceptance—Eejection.— The common coun- 
cil may, under this section, refer back to the city commissioners their first report, but 
is obliged to either accept or reject a second report by such commissioners within 
twenty-eight days after it is made, and such action is final ; but the statute contains no 
such provision in relation to its action on the first report. City of Elkhart v. Simonton, 
71 Ind. 7. 

Same — What reference is for. — The reference back of the report to the commission- 
ers is for the purpose of readjusting or changing the assessment, or amending or chang- 
ing the report by the commissioners as to the persons, or property of persons, previously 
notified of the proceedings, and it does not contemplate any action on the part of the 
commissioners which will affect other persons or property. An assessment of additional 
property upon such a reference is without authority of law, and void. City of Logans- 
port V. Shirk, 129 Ind. 352. 

248. Change of street on petition of abutters. — 24. Whenever a 
street, alley, highway, or water-course shall have been opened or laid 
out, the abutters thereon may, by mutual agreement, change the same 
so as to give it a proper vacation [location] , width, or direction; pro- 
vided, they shall first obtain the consent of the common council. 
Before any such change shall be made, the persons interested therein 
shall file with the city clerk a written agreement, and shall petition 
the common council to change or alter such street, and shall state in 
their petition the reasons for such change, and shall accompany the 
petition with a map or plat of the highway and the surrounding lo- 
cality. R. S. 1894, § 3653. 

249. Remoyal of otostmctions, etc. — 25. The common council 
shall have power to pass all ordinances necessary to more effectually 
carry into execution the powers herein granted, and which are not 
inconsistent with the laws of the state; and they may also cause to be 
opened streets, alleys, or highways which have been laid out or 
opened, but which have not been vacated; and they shall have power 



§ 250 CITIES. 816 

to cause all obstructions to be removed from highways, streets, alleys, 
or water-courses, when necessary for the general welfare. The mar-= 
shal of said city shall have full power to open any street, alley, or 
highway, when directed by the common council, and may remove any 
and all obstructions therein. When any person shall, after five days' 
notice, fail, neglect, or refuse to remove obstructions, the marshal 
shall cause the same to be done at the expense of such persons, and 
shall cause the city attorney to enter an action therefor; and in such 
action, judgment shall be rendered against such person for the rea- 
sonable expense and cost of such removal. R. S. 1894, § 3654. 

Proceeding's to remove obstructions — Specific performance of ag'reement.—A suit 
to compel specific performance of a written agreement between the owners of lots in an 
addition to a town to open a public street in such addition is not the proper proceeding 
to remove an obstruction in said street. Mather v. Simonton, 73 Ind. 595. 

250. Plats. — 27. When any street or alley shall have been 
opened or laid out, or whenever such street or alley shall be vacated, a 
proper plat thereof shall be filed in the recorder's office of the county 
in which such city is situated. In case of the opening or laying out 
of any street or alley, the plat shall be made by the city engineer and 
filed by the city clerk; and in case of a vacation of any street or alley, 
the persons desiring such vacation shall, at their own expense, cause 
such plat to be made out, filed and recorded; and no order of vacation 
shall be deemed of effect until such plat is filed in the office of the re- 
corder, as aforesaid. R. S. 1894, § 3655. 

251. Pending proceedings. — 28. No proceedings now pending, 
nor any action pending or right of action, shall be extinguished or 
rendered invalid by the provisions hereof; nor shall anything herein 
contained be construed as abridging the powers of the incorporated 
cities of the state as conferred by the act of incorporation, except as 
herein expressly provided. R. S. 1894, § 3656. 

252. Compensation and damages.— 29. If any owner of real estate 
shall, after the service of notice and during the pendency of such pro- 
ceedings, make any improvements of the real estate sought to be 
seized for the purpose of street, alley, highway or water-course, he 
shall not be entitled to any compensation whatever therefor; and if 
any land-owner shall, after service of notice and during the pending 
of such proceeding upon him, do any act which will render the 
opening or change of a street, alley, highway or water-course more 
expensive, the expenses thus caused shall be deducted from any charges 
awarded him on his real estate: Provided, That nothing herein con- 
tained [shall be construed] as preventing any such owner from receiv- 
ing just compensation for such improvements as may have been com- 
menced or contracted for prior to the service of such notice. It shall 
be the duty of all persons laying out or dedicating streets, alleys or 
highways to make the same conform in all respects to those of the 
city; and when they do not so conform to streets, alleys or highwaj^s 
already laid out, the existence thereof shall not be deemed to benefit 



317 ANNEXATION OF TERRITORY. § 253 

the real estate of such person: Provided, That nothing herein con- 
tained shall be considered as requiring sacli owner to grade or other- 
wise improve such highway, except as provided in the general law for 
the incorporation of cities. R. S. 1894, § 3657. 

ARTICLE 6.— ANNEXATION OF TERRITORY. 

SEC. SEC. 

253. Extension over platted lotg. 255. Proceedings by county board. 

254. Extension over contiguous lands — Ac- 

tion of council. ' 

[Acts 1867, p. 33. In force March 14, 1867.] 

253. Extension over platted lots, — 84. Whenever there shall be 
or may have been lots laid off and platted adjoining such city, and a 
record of the same is made in the recorder's office of the proper 
county, the common council may, by a resolution of the board, ex- 
tend the boundary of such city so as to include such lots, and the lots 
thus annexed shall thereafter form a part of such city and be within 
the jurisdiction of the same. The common council shall immediately 
thereafter file a copy of such resolution, defining the metes and bound- 
aries of such addition, in the office of the recorder aforesaid, which 
shall be recorded. R. S. 1894, § 3658. 

See post, § 1017, et seq. 

Jurisdiction— Platted and unplatted lands. — If the land is platted, and the plat is 
recorded by the owner, the law implies a consent on his part that the land may be taken 
into the city. If the land is not platted, or the plat not recorded, the owner may file his 
written consent with the city council agreeing that the land may be annexed. In either 
case the council has jurisdiction ; but in case the property owner does not consent to an- 
nexation, that is, does not make and put on record a plat of his land, or does not file 
with the city his written agreement that the land may be annexed, then the county 
board of commissioners, upon proper petition, is the tribunal with jurisdiction to order 
annexation. Forsythe v. City of Hammond, 142 Ind. 505. See Mayor, etc., v. Weems, 
5 Ind. 547. 

Lands not platted. — The common council of a city has no authority to order the an- 
nexation of contiguous territory without the consent of the owners, unless it has been 
laid off into lots and platted, and an order annexing territory not platted, where the 
owner has not consented, is void. Strosser v. City of Ft. Wayne, 100 Ind. 443, 446; 
City of Indianapohs v. Patterson, 112 Ind. 344, 347; Chandler v. City of Kokomo, 137 
Ind. 295; Forsythe v. City of Hammond, 142 Ind. 505; City of Delphi v. Startzman, 104 
Ind. 343; Mayor, etc., v. Weems, 5 Ind. 547. 

Lots— Meaning" within statute. — When property is platted into lots and marked in 
such a way as to impress upon it the character of urban property as distinguished from 
rural use, the subdivisions are regarded as *'lots" within the meaning of the statute au- 
thorizing the annexation of territory platted into lots. Glover v. City of Terre Haute, 
129 Ind. 593, 594; City of Evansville v. Page, 23 Ind. 525; Colhns v. Hty of New Al- 
bany, 59 Ind. 396. 

Platted by non-owner.— A city has no jurisdiction to annex, by a resolution of it^ 
conmion council, lots laid off and platted by one who is not the owner of the land and 
who has no authority in the premises. City of Indianapohs v. Patterson, 112 Ind. 344, 
347. 

Unplatted land not contig'UOUS.--In the annexation of contiguous territory, the 



§253 CITIES. 318 

common council of an incorporated city is not authorized to extend the boundary of 
«uch city, by resolution, so as to include adjoining lands which have not been laid off in 
lots and platted, and a record made of such plat; and any such attempted annexation 
of unplatted lands is void for want of jurisdiction, and the levy and attempted collec- 
tion of municipal taxes, on such lands so annexed, may be enjoined by the decree of 
the proper court. City of Logansport v. La Rose, 99 Ind. 117, 121. 

Plat must be recorded. — Lands laid off and platted can be annexed to the city by the, 
common council only when the plat has been legally recorded. Taylor v. City of Ft. 
Wayne, 47 Ind. 274; City of Logansport v. La Rose, 99 Ind. 117; Strosserv. City of Ft. 
Wayne, 100 Ind. 443; City of Indianapohs v. Patterson, 112 Ind. 344. 

The laying out in lots and platting of land within a city does not take the same out 
of the city, nor exempt it from taxation for city purposes. City of Delphi v. Bowen, 61 
Ind. 29. ^ 

LTnder the act of 1852, while in force, the common council of a city incorporated there- 
under had the power by resolution to so extend its boundaries as to include adjoining 
land which had been laid off and platted, and a plat thereof duly recorded; and terri- 
tory so included became liable to taxation for certain purposes. Collins v. City of New 
Albany, 59 Ind. 396. 

Contig'iioiis territorj\ — In order that any land, platted or unplatted, should be annexed 
to a city, it is necessary that the land to be annexed should be contiguous to the city 
limits, that is, that it should actually touch the existing territorj^ of the city. Forsythe 
V. City of Hammond, 142 Ind. 505; City of Indianapolis v. McAvoy, 86 Ind. 587; City 
of Logansport v. La Rose, 99 Ind. 117. 

Several pieces of platted territory may be annexed to the city at the same time, if they 
adjoin each other, although but one adjoins the city. City of Evansville v. Page, 23 Ind. 
525; Catterhn v. City of Frankfort, 87 Ind. 45 ; Huff v. City of Lafaj^ette, 108 Ind. 14. 

Lands not adjacent. — A statute giving a city council jurisdiction to annex adjacent 
lands on the written consent of the owners, gives the council no jurisdiction to annex 
lands on the petition of owners w^hose lands are not adjacent. Forsythe v. City of Ham- 
mond, 142 Ind. 505. 

Effect of non-navig'able stream. — The existence of a non-navigable stream between 
the corporate boundary and territory sought to be annexed will not prevent the annex- 
ation. City of Delphi v. Startzman, 104 Ind. 343, 345. 

Eminent domain— Constitution. — Annexation of territory to a city is not the exer- 
cise of eminent domain. Annexation does not deprive a person of property within the 
constitution of the United States, providing that no state shall deprive persons of prop- 
erty without due process of law. Taggart, etc., v. Claypool, 145 Ind. 590; Stilz v. City 
of Indianapolis, 55 Ind. 515; Kelly v. Pittsburgh, 104 U. S. 78; 1 Beach Pub. Corp., 
§ 398, et seq, ; 1 Dillon Munic. Corp., 4th ed. § 185. 

Collateral attack. — Where the common council proceeds without jurisdiction, such 
proceedings are a nullity and may be attacked collaterally, except in cases of estoppel. 
Forsj^he v. City of Hammond, 142 Ind. 505 ; City of Indianapolis v. McAvoy, 86 Ind. 
587; Strosser v. City of Ft. Wayne, 100 Ind. 443; City of Delphi v. Startzman, 104 Ind. 
343; City of Indianapolis v. Patterson, 112 Ind. 344. 

Acquiescence— Laches and neg-lect — Equitable defense.— Where the annexation 
proceedings are of doubtful legality, or even clearly illegal, if the residents and prop- 
erty owners of the annexed territory are guilty of laches and neglect in asserting their 
legal rights, and acquiesce for a number of years in the validity of such annexation, 
during which time they voted for city officers, and were represented in the common 
council of the city by councilmen of their own selection, and by their action and the 
votes of their representatives large debts were contracted by the city for its improve- 
ment, in all the benefits of which they shared, such long continued acquiescence in 
such annexation constitutes a complete equitable defense to a suit to enjoin the collec- 



319 ANNEXATION OF TERRITORY. § 253 

tion of city taxes assessed against property so annexed. City of Logansport v. LaRose, 
99 Ind. 117. 

Injimction— Parties— Pleading".— One or more citizens of a territory sought to be 
annexed to a city may maintain a suit to prevent the consummation of an attempted 
illegal annexation. City of Delphi v. Startzman, 104 Ind. 343, 345. 

Where there has been an attempted illegal annexation of territory to a city, and an 
attempt on the part of the city to interfere with property rights under such color of 
legal authority, injunction is the appropriate remedy. City of Delphi v. Startzman, 104 
Ind. 343. 

Where the complaint states facts sufficient to show a right to have a municipal cor- 
poration restrained from exercising corporate powers over a territory not legally 
annexed to the city, the pleading is not bad because it omits to aver that the treasurer 
had the tax duplicate in his hands. Citjr of Delphi v. Startzman, 104 Ind. 343, 347. 

Land-owner— When estopped.— Where public officers have no personal interest in 
the matter, and, acting in good faith, assume to make a change in the corporate bound- 
aries of a city, and fail through mistake of fact to proceed in accordance with the 
statute, a property owner who resides in the territory sought to be annexed, and who 
sees the city spend large sums of money in making public improvements on the terri- 
tory annexed, may be estopped, even though he did not know that the proceedings w^ere 
void. Strosser v. City of Ft. Wayne, 100 Ind. 443, 448; 1 Beach Pub. Corp., § 421. 

If the property owner for a considerable length of time acquiesces in the annexation 
proceedings, and, without objection, sees the city make improvements and expend large 
sums of money upon the faith of the validity of the proceedings, he will be estopped 
from impeaching the validity of the proceedings, although he may not have directly re- 
ceived any benefit from the improvements made by the city. Strosser v. City of Ft. 
Wayne, 100 Ind. 443, 450; City of Logansport v. LaRose, 99 Ind. 117. 

A property owner does not estop himself from contesting the validity of proceedings 
ordering the annexation of territory to the corporation in cases where there is no juris- 
diction to make the order, by voting at municipal elections and by offering himself as 
a candidate for office ; nor does he estop himself by unsuccessfully petitioning the com- 
mon council to improve the streets. Strosser v. City of Ft. Wayne, 100 Ind. 443, 445. 

Married woman — Estoppel. — A wife, whose land has been platted without her 
knowledge or consent by her husband, is not estopped to dispute the validity of the 
plat, and the subsequent annexation of the land to a city, by paying city taxes and 
executing conveyances, without knowledge of the facts, and in the belief that such 
transactions relate to lots previously and legally platted by her, nor by a street improve- 
ment of which she had no knowledge and which was made at the expense of lot-owners. 
City of Indianapolis v. Patterson, 112 Ind. 344, 348. 

lUeg'al annexation— Taxes— Injunction.— Where a city has assessed for taxation, 
property illegally annexed to such city, collection of taxes so assessed may be enjoined. 
City of Peru v. Bearss, 55 Ind. 576; Windman v. City of Vincennes, 58 Ind. 480; Stultz 
V. State, 65 Ind. 492, 503; 1 Beach Pub. Corp., § 413. See Mullikin v. City of Bloom- 
ington, 72 Ind. 161. 

Taxes, recovery of — Limitation. — Where the plat and the annexation are void, 
taxes assessed and collected by the city are illegal, and may, there being no estoppel, 
be recovered back, unless barred by the six years statute of limitations, which begins to 
run with each payment. City of Indianapolis v. McAvoy, 86 Ind. 587, 589; Strosser v. 
City of Ft. Wayne, 100 Ind. 443, 444 ; McWhinney v. City of Indianapohs, 101 Ind. 
150, 153; Newsom v. Board, etc., 103 Ind. 526, 528; City of Indianapolis v. Patterson, 
112 Ind. 344, 350. 

Motive for annexation — Injunction— Taxes.— The motive of a city in annexing ter- 
ritory can not be inquired into in a suit to enjoin the collection of taxes levied on the 
property by the city. Glover v. City of Terre Haute, 129 Ind. 593; City of Logansport 
v. Seybold, 59 Ind. 225; 1 Beach Pub. Corp., g 413. 



^ 254 CITIES. ■ 320 

Complaint.— An averment that certain lots alleged to have been illegally assessed 
were not taxable, not showing that they do not lie within the city territory, is insuffi- 
cient. City of Delphi v. Bo wen, 61 Ind. 29. 

Curative statutes. — Curative statutes will not validate annexation proceedings that 
are void for want of jurisdiction. Strosser v. City of Ft. Wayne, 100 Ind. 443 ; Johnson 
V. Board, etc., 107 Ind. 15. 

In the year 1856, the city council of Terre Haute passed a resolution extending the 
city limits, by annexing thereto certain contiguous territory. In a suit by the owners 
of the lots so annexed to enjoin the collection of taxes assessed by the city, any de- 
fect in the proceedings of the ccuncil was cured by § 83, of the act of March 9, 1857, for 
the incorporation of cities. Edmunds, etc., v. Gookins, 24 Ind. 169 ; Edmunds, etc., v. 
Gookins, 20 Ind. 477. 

Testing- validity of annexation— Quo warranto.— The legality of the annexation of 
territory to a city can not be questioned by quo warranto proceedings. Stultz v. State, 
65 Ind. 492 ; 2 Dillon Munic Corp., 4th ed., 897 n. 

Annexation— Local concern— Effect of decisions of the hig-hest court of the state. 
—Upon an appeal in annexation proceedings to the highest court of the state the judg- 
ment rendered by such court becomes res adjudicata. The annexation of territory to a 
municipal corporation is a matter of purely local concern and interest, and the con- 
struction placed by such court upon the constitution and statutes of the states relative 
to such proceedings is binding upon the federal courts. The case of Forsythe v. City of 
Hammond, 34 IT. S. Ct. Ct. App. 552, reversed; Forsythe v. City of Hammond, 106 
U. S. 506. 

254. Extension oyer contiguous lands — Action of council. — 85. 

The limits of any city may be extended over any lands or contiguous 
territory, by the consent of the owner thereof in writing, and a reso- 
lution of the common council, passed by a two-thirds vote, extend- 
ing the limits of such city over such lands or territory; which written 
consent and resolution shall be entered at length in the records of 
such city; and the common council shall cause a certified copy of 
both to be recorded in the recorder's office of the proper county. If 
any city shall desire to annex contiguous territory not laid off in lots, 
and to the annexation of which the owner will not consent, the common 
council shall present to the board of county commissioners a petition 
setting forth the reasons for such annexation, and, at the same time, 
present to such board, an accurate description, by metes and bounds, 
accompanied with a plat of the land or territory proposed or desired 
to be annexed to such city. The common council shall give thirty 
days' notice, by publication in some newspaper of the city, of the in- 
tended petition, describing in such notice the territory sought to be 
annexed. R. S 1894, § 3659. 

This section is constitutional.. Stilz v. City of Indianapolis, 55 Ind. 515. See Long- 
worth, etc., Co. V. Common Council, etc., 32 Ind. 322, 

Annexation — Eminent domain.— The authority conferred by this act upon the county 
board to annex territory to a city contiguous thereto is not founded upon the right of 
eminent domain. In the annexation of territory no property is taken from the owner. 
The act of annexation simply changes the property and its owner in their civil relation 
to certain public authority. Stilz v. City of Indianapolis, 55 Ind, 515; Taggart, etc., v. 
Claypool, 145 Ind. 590. 

Annexation proceeding's, statutory— Statute construed.— Proceedings for the an- 



321 ANNEXATION OF TERRITORY. § 254 

nexation of contiguous territory to incorporated cities are statutory proceedings ; to 
make them operative and give them validity, it is essentially necessary that all the 
proceedings should be in strict conformity with the provisions and requirements of the 
statute. City of Peru v. Bearss, 55 Ind. 576; Windman v. City of Vincennes, 58 Ind. 
480. 

Same — Evidence. — Only v^^hen the proceedings in such case have strictly complied 
with the statute is the entry of such annexation, or an attested copy thereof, conclusive 
evidence of annexation. Windman v. City of Vincennes, 58 Ind. 480. 

For construction of the statute for the incorporation of the city of Aurora, with refer- 
ence to boundaries, see Green v. Cheek, 5 Ind. 105. 

Platted and unplatted territory— Jurisdiction— Proof .—It must be alleged in the 
petition for annexation whether the territory sought to be annexed is platted or un- 
platted territory, in order to determine whether the board of county commissioners or 
city council have jurisdiction of the proceedings, and that fact must be proven on 
appeal to the circuit court, unless admitted. Chandler v. City of Kokomo, 137 Ind, 
295. 

In an action before the board of county commissioners for annexation, the contigu- 
ous territory sought to be annexed must be unplatted ; or, at least, if platted, the plat 
must, as yet, be unrecorded ; but should there be, within the limits of the territory to 
be annexed, certain tracts called "platted lots" not contiguous to the city limits, and 
hence not recorded, such circumstance would not defeat the jurisdiction of the county 
board to order the annexation. Forsythe v. City of Hammond, 142 Ind. 505. See City 
of Logansportv. La Eose, 99 Ind. 117. 

County commissioners— Jurisdiction. — Where territory, not platted, is sought to be 
annexed to a city to which it lies adjacent, the board of county commissioners has 
exclusive original jurisdiction over the matter, and the city must by petition secure 
from that body the proper order. Strosser v. City of Ft. Wayne, 100 Ind. 443, 453; 
City of Delphi V. Startzman, 104 Ind. 343, 346 ; Chandler v. City of Kokomo, 137 Ind. 295 ; 
Forsythe v. City of Hammond, 142 Ind. 505. 

Board of commissioners— Jurisdiction — Curative statutes.— Where the statute con- 
fers exclusive jurisdiction upon the board of commissioners to order lands annexed to 
a city, the power can not be exercised by the common council, and a statute attempting 
to legalize an order made in such a case by the common council is inoperative and void. 
Strosser v. City of Ft. Wayne, 100 Ind. 443; Johnson v. Board, etc., 107 Ind. 15, 19. 

Filing" petition— When — Notice of. — The statute authorizing the petition does not re- 
quire that it shall be filed any specified period prior to the first day of the session of the 
county board at which it is intended to present it, but thirty days' notice of such inten- 
tion must be given. Stilz v. City of Indianapolis, 55 Ind. 515. 

Same — Plat— When filed. — The plat of the land proposed, in the petition therefor, to 
be annexed to a city, need not be filed at the time such petition is filed, but may be 
filed thereafter at any time before the county board has finally acted upon such peti- 
tion, even over the objection of a remonstrant. Stilz v. City of Indianapolis, 55 Ind. 
515. 

Same — Survey.— If such petition contain a specific description of the premises asked 
to be annexed, and the plat filed therewith contain a copy of an actual established sur- 
vey thereof, though theretofore made for another purpose, a survey for the purposes of 
such petition is unnecessary. Stilz v. City of Indianapolis, 55 Ind. 515. 

The jurisdiction to annex lands to a city is in the county board, where contiguous 
lands are platted, but such plats are not properly acknowledged and recorded; or 
where lands platted into lots are not contiguous to the city, and the proceeding is to 
annex contiguous territory which includes such platted lots. Forsythe v. City of Ham- 
mond, 142 Ind. 505. 

Same— Special session.— A board of county commissioners, convened in special ses- 

ClT, AND To.— 21 



§ 254 CITIES. 322 

sion, can not make a valid order for the annexation of contiguous temtory to an in- 
corporated city. City of Yincennes v. "Windman, 72 Ind. 218. 

Platting" — Sufficiency.— Platting may consist alone in drawings and statements upon 
paper, and does not imply such markings and subdivisions upon the lands as to dis- 
tinguish them from unplatted lands. Proof or admissions that lands are used for agri- 
cultural or horticultural purposes does not raise the inference that the lands are un- 
platted. Chandler v. City of Kokomo, 137 Ind. 295. 

Petition— Reasons for annexation.— The statute for annexation of lands to a city 
does not prescribe the reasons which shall be sufficient for such annexation, but leaves 
that question to the sound discretion of the authority passing upon the petition for an- 
nexation ; nor does the statute require that the petition shall state that the owners will 
not consent to the annexation. Chandler v. City of Kokomo, 137 Ind. '295. See El- 
ston V. Board, etc., 20 Ind. 272. 

Petition, when sufficient. — A petition for annexation is not faulty because it excepts 
from its prayer platted territory wdthin the hues of the larger territory described, nor 
because the territory sought to be annexed is composed of separate tracts, some of 
which do not adjoin the existing city boundary, if they do adjoin each other. Catterlin 
V. City of Frankfort, 87 Ind. 45, 48. 

Same— Sig'natures. — The petition is sufficient if signed by a number of the members 
of the council exceeding two thirds ; it need not be unanimously signed. Stilz v. City 
of Indianapolis, 55 Ind. 515, 

What unnecessarj^ in petition. — It is not necessary that the petition for annexation 
should state that the land-owners will not consent to an annexation by the common 
council of the city. Huff v. City of Lafayette, 108 Ind. 14, 18. 

Reasons for annexation. — The sufficiency of reasons for annexation stated in a pe- 
tition must be left to the tribunal acting upon it, using a sound discretion. That the 
inhabitants enjoy the advantages of city government and institutions, and ought, there- 
fore, to share its burdens ; that the highways should be properly graded and improved ; 
that drainage may be provided, and the like, are sufficient. Catterlin v. City of Frank- 
fort, 87 Ind. 45, 52; Chandler v. City of Kokomo, 137 Ind. 295; Windfall, etc., Co. v. 
Emery, 142 Ind. 456. 

Petition — Collateral attack. — If a petition purporting to be made by the mayor and 
council for the annexation of unplatted lands is signed only by the mayor and is acted 
on by the county board, the proceedings can not be collaterally attacked. Huff v. City 
of Lafayette, 108 Ind. 14, 15. 

Jurisdiction — Collateral attack. — A complaint to enjoin a city from exercising juris- 
diction over territory annexed claimed that the proceedings to annex w^ere void : 1. 
Because the petition for annexation prayed for the annexation of other lands also, 
which the county board refused to annex. 2. Because no notice of the intention to 
present the petition was given by publication for thirty days. The complaint did not 
show that the board had not jurisdiction of the j)roceedings, and therefore the annexa- 
tion could not be attacked collaterall3^ City of Terre Haute v. Beach, 96 Ind. 143, 
144. 

Notice of petition— Sufficiency— Names. — Notice of the presentation of a petition to 
the county commissioners is not insufficient because signed by the mayor only, and be- 
cause it does not contain the name of one of the land-owmers and particularly describe 
his land. If there is notice in the manner provided by the statute, it is sufficient as 
against a collateral attack. Catterhn v. City of Frankfort, 87 Ind. 45, 47; Huff v. City 
of Lafayette, 108 Ind. 14, 19. See Woodfill v. Towm of Greensburg, 18 Ind. 203; El- 
ston V. Board, etc., 20 Ind. 272. 

T\Tiere there is some notice, of a legal form, and that notice is adjudged sufficient, 
the proceeding is not void, although the notice may be defective. City of Terre Haute 
V. Beach, 96 Ind. 143, 145; Powell v. City of Greensburg, 150 Ind. 148. 



323 ANNEXATION OF TERRITORY. § 255 

Description— Notice— Petition.— Such a notice gave a line of the territory to be an- 
nexed, from a certain point on a certain road, "with said road north twenty -four and 
one-half degrees west, twelve hundred and ninety-five feet to," etc. ; the petition de- 
scribed the line in the same words save the course, which it gave as "north twenty-four 
and one-fourth degrees west." There was no variance, the monuments given in both 
fixing the course definitely. Catterlin v. City of Frankfort, 87 Ind. 45, 47. 

Leng"th of notice.— Notice of a petition to the county board for the annexation of 
unplatted territory to the city, under this section (R. S. 1894, § 3659), is sufficient if 
given thirty days, excluding the first day and counting the last one, and the signature 
of the city clerk, attested by the city attorney, is a sufficient signing, where it is also 
shown that the common council directed the notice to be given. Catterlin v. City of 
Frankfort, 87 Ind. 45, 47. 

Description of territory. — Where the contiguous territory, which it is desired to an- 
nex to a city, is described in the petition by the divisions formed by the congressional 
surveys, and by subdivisions thereof, capable of being ascertained, such description is 
sufficient. Stilz v. City of Indianapolis, 55 Ind. 515; Powell v. City of Greensburg, 150 
Ind. 148. 

The proceedings for annexation will not be invalidated by a mistake in the notice 
giving wrong name of the owner of the land, the statute not requiring the name of the 
owner to be given. Powell v. City of Greensburg, 150 Ind. 148. 

Boundaries— Leg"islative and Judicial functions. — The creation, enlarging and con- 
traction of boundaries of municipal corporations are legislative and not judicial func- 
tions, and may be exercised by the legislature without the consent and against the re- 
monstrance of those interested. Woolverton v. Town of Albany, Ind. Sup. Ct., Jan. 5, 
1899; Paul v. Town of Walkerton, 150 Ind. 565. 

General laws providing conditions upon which cities and towns may be incorporated 
as municipal corporations, with or without the consent of those interested, and vesting 
the power in judicial bodies to determine whether such conditions exist, and, if so, to 
order such incorporation, are valid. Woolverton v. Town of Albany, Ind. Sup. Ct., 
Jan. 5, 1899; Paul v. Town of Walkerton, 150 Ind. 565; Forsythe v. City of Hammond, 
142 Ind. 505, 516, 519; Forsythe v. Hammond, 68 Fed. Rep. 774. 

In such case the creation of the corporation is not the act of the court or other body, 
but is the act of the law. If the facts exist under the law, the board of commissioners 
or the court of appeal has no discretion and can exercise none, but must order the in- 
corporation of such town or city. Woolverton v. Town of Albany, Ind. Sup. Ct., Jan. 
5, 1899; Forsythe v. City of Hammond, 142 Ind. 617, 518. 

Annexation of territory— Leg-islative character— Judicial examination.— The legis- 
lative character of the function of annexation of territory to a city does not preclude ju- 
dicial examination and decisions on questions as to the preliminary steps and the truth 
and sufficiency of the petition for annexation. Forsythe v. City of Hammond, 142 Ind. 
605. See Forsythe v. City of Hammond, 68 Fed. Rep. 774; Forsythe v. City of Ham- 
mond, 166 U. S. 506. See 1 Dillon Munic. Corp., 4th ed., §§ 182, 183. 

255. Proceedings by county board. — 86. The board of county com- 
missioners, upon the reception of such petition, shall consider the 
same, and shall hear the testimony offered for or against such annex- 
ation; and if, after inspection of the map and of the proceedings had 
in the case, such board is of the opinion that the prayer of the pe- 
tition should be granted, it shall cause an entry to be made in the 
order-book, specifying the territory annexed, with the boundaries of 
the same according to the survey; and they shall cause an attested 
copy of the entry to be filed with the recorder of such county, which 



§ 255 CITIES. 324 

shall be duly recorded in his office, and which shall be conclusive evi- 
dence of such annexation in all courts in this state. R. S. 1894, 
§ 3660. 

Disannexation, see post, § 1037, et seq. 

Hearing'— Evidence— What incompetent.— That some of the owners of the proposed 
territory, not remonstrants, had, four months before the presentation of the petition, 
given their written consent to the proposed annexation, was not material, nor was it 
proper evidence for the remonstrants, on tlie hearing of such a petition, when a num- 
ber of other owners had refused. Catterhn v. City of Frankfort, 87 Ind. 45, 53. 

Any evidence is proper, upon a hearing of the annexation proceedings, which tends 
to show the location of the city or town, its improvement, advantages and surround- 
ings, its institutions, its advantage as a trading point, its railroad and gravel road facil- 
ities, the various kinds of industries and business carried on in the city or town and 
territory to be annexed, the business relations between the owners of the land in the 
territory to be annexed, and the mutual advantages or disadvantages that may result to 
the citizens of the corporation, and territory to be annexed, etc. Winfall, etc., Co. v. 
Emery, 142 Ind. 456. 

Can not annex part only. — Where the common council of a city has filed its petition 
with the proper county board, asking that certain described lands, not platted, lying 
contiguous to such city, be annexed thereto, to w^hich it is averred that the owner will 
not consent, such board has no power to order the annexation of a part, only, of such 
lands, but must grant or refuse the prayer of such petition as a whole. City of Peru v. 
Bearss, 55 Ind. 576. 

Partial annexation void — Tax— Injunction.— An order of such county board, an- 
nexing to such city a part, only, of such lands, is inoperative and void; and where a 
city has assessed a tax for municipal purposes on lands so annexed, its collection may 
be enjoined and such assessment canceled, in an action therefor by the owner. City 
of Peru V. Bearss, 55 Ind. 576. 

It was held in above case that the statute did not authorize an appeal from the de- 
cision of the county board, but see later cases following. 

Appeal. — An appeal lies from an order of a county board annexing territory to a city. 
Forsythe V. City of Hammond, 142 Ind. 505; Grusenmeyer v. City of Logansport, 76 
Ind. 549; City of Logansport v. LaKose, 99 Ind. 117; Wilcox v. City of Tipton, 143 Ind. 
241, 246. See Wlndman v. City of Vincennes, 58 Ind. 480; City of Peru v. Bearss, 55 
Ind. 576 ; City of Indianapolis v. Sturm, 39 Ind. 159 ; Trustees, etc., v. Manck, 35 Ind. 51 ; 
Church V. Town of Knightstown, 35 Ind. 177. 

Upon appeal the petition for annexation may be amended so as to exclude certain 
territory originally included in the petition. Wilcox v. City of Tipton, 143 Ind. 241. 

Collateral attack. — The proceedings of the county board can not be collaterally im- 
peached or attacked. If there be errors in such proceedings, the remedy of the party 
aggrieved thereby is an appeal to the circuit court of the county, and not a suit for an 
injunction. City of Logansport v. LaRose, 99 Ind. 117 ; Grusenmeyer v. City of Logans- 
port, 76 Ind. 549; Board, etc., v. Karp, 90 Ind. 236; Town of Cicero v. WiUiamson, 91 
Ind. 541 ; Huff v. City of Lafayette, 108 Ind. 14. 

Trial de novo. — Upon an appeal from the board of county commissioners to the cir- 
cuit court the proceedings are tried de novo. Wilcox v. City of Tipton, 143 Ind. 241; 
Chandler v. City of Kokomo, 137 Ind. 295. 

Injunction — Power of city to tax farm land.— The power of a city to tax for munici- 
pal purposes, a tract of farm or garden land, contiguous to such city, can not be called 
in question in an action by the owner thereof, against such city and a county board, to 
enjoin them from executing an order of such board, annexing such land to such city. 
Stilz V. City of Indianapohs, 55 Ind. 516. 



325 FIRE DEPARTMENT. § 256 

Injunction— Appeal— Answer— Notice.— An answer in an action to enjoin the an- 
nexation of plaintiff's territoiy to defendant city need not allege notice to plaintiff of 
an appeal from an order of annexation by the commissioner's court to the circuit court, 
where the jurisdiction of the latter court over the plaintiff was not questioned by the 
complaint. "Wilcox v. City of Tipton, 143 Ind. 241. 

Injunction— Supreme court— Appeal. — Where citizens and property owners in the 
territory sought to be annexed, having appealed from the judgment in the annexation 
proceedings to the supreme court, petition the supreme court for an injunction restrain- 
ing the consideration of the judgment appealed from in the elections, taxation and in- 
ternal improvement of the city, none of the acts sought to be restrained being alleged 
to be imminent, except that of voting, the injunction will not be granted. Forsythe v. 
City of Hammond, 137 Ind. 426. 

Under this section, as originally enacted, when a petition was presented to the 
common council for the vacation of a street or alley, or any part thereof, and a remon- 
strance was filed against such vacation, the council had no power to order the street or 
alley to be vacated, unless the remonstrance was withdrawn or two-thirds of all the own- 
ers of real estate of such city petitioned therefor. Spiegel v. Gansberg, 44 Ind. 418; 
Sims V. City of Frankfort, 79 Ind. 446, 455. 

ARTICLE 7.-FIRE DEPARTMENT. 

SEC. SEC. 

256. Fire wardens. 259. Power of chief engineer and assist- 

257. Regulation to prevent fires. ants. 

258. Fire engines and houses. 260. Privileges of firemen. 

261. Destruction of buildings. 

[Acts 1867, p. 33. In force March 14, 1867.] 

256, Fire wardens.™72. The councilmen, by virtue of their of- 
fice, shall be fire wardens, or the common council may appoint one or 
more fire wardens; and all fire wardens shall have power, at all rea- 
sonable hours, to enter into and examine all dwellings, out-houses, 
lots, and yards in their respective wards or in said city, to inspect all 
places wherein fire is used, and to ascertain how ashes are kept and 
disposed of. R. S. 1894, § 3661. 

257. Eegulation to prevent Hres.-~73. The common council shall 
have power to regulate the construction of chimneys, hearths, ovens, 
the erection of stoves and stove-pipes, boilers and apparatus used in 
manufactories and in buildings, and cause the same to be removed or 
made secure when considered dangerous; to compel owners and occu- 
pants of houses and buildings to make scuttles in the roofs thereof, 
and stairs or ladders leading to the same. R. S. 1894, § 3662. 

Protection ag^ainst fire— Inlierent power— Express power.— Cities in this state pos- 
sess ample power to enact and enforce reasonable ordinances to secure protection 
against fire. In the absence of express statutory authority the enactment and enforce- 
ment of reasonable regulations of this character are recognized as a legitimate exercise 
of the police power necessary to the safety of the city. In addition to the power thus 
possessed, the statutes of this state confer express authority upon cities to establish fire 
limits and prevent the erection of wooden buildings in such parts of the city as the 
common council may determine. The statutory power thus conferred is not a limita- 
tion upon the common law power of the city in this particular. Koffman v. Stein, 138 



§ 258 CITIES. 826 

Ind. 49; City of Eushville v. Eushville, etc., Co., 132 Ind. 575; First Nat. Bank v. 
Sarlls, 129 Ind. 201 ; Hasty v. City of Huntington, 105 Ind. 640 ; Clark v. City of South 
Bend, 85 Ind. 276; Baumgartner v. Hasty, 100 Ind. 575; Corporation of Bluff ton v. 
Studabaker, 106 Ind. 129; Shea v. City of Muncie, 148 Ind. 14; 1 Dillon Munic. Corp., 
4th ed., §§ 141, 143. 

Ordinances — When invalid. — Municipal ordinances placing restrictions upon lawful 
conduct, or the lawful use of property, must, in order to be valid, specify the rules and 
conditions to be observed in such conduct or business ; and must admit of the exercise 
of the privilege by all citizens alike who will comply with such rules and conditions ; 
and must not admit of the exercise, or of an opportunity for the exercise, of any 
arbitrary discrimination by the municipal authorities, between citizens who will so 
comply. City of Eichmond V. Dudley, 129 Ind. 112; City of Plymouth v. Schultheis, 
135 Ind. 339. 

Eepairs of building's. — A municipal ordinance is invalid which arbitrarily attempts 
to take from the owner of a frame or wooden building all power to make repairs neces-. 
sary for its preservation or necessary for its enjoyment, regardless of the effect which 
such repairs may have upon the public and upon adjacent property, or upon the rights 
of others ; but if the owner proposes to make repairs or additions of such material, or 
in such manner as to clearly menace the public safety or to greatly endanger adjacent 
property, the city authorities have ample power to interfere and prevent the making of 
such repairs or additions. First National Bank, etc., v. Sarlls, 129 Ind. 201; 1 Beach 
Pub. Corp., §578. 

Failure to exercise powers— Neglig-ence of firemen— City not liable.— Cities are 
not liable for property destroyed by fire because they do not exercise the powers con- 
ferred by law in regard to providing protection from fire ; nor are they liable for the 
negligence of the fire department. Brinkmeyer v. City of Evansville, 29 Ind. 187 ; 
Eobinson v. City of Evansville, 87 Ind. 334; City of Lafayette v. Timberlake, 88 Ind. 
330; Faulkner v. City of Aurora, 85 Ind. 130; Kistner, etc., v. City of Indianapolis, 100 
Ind. 210; City of Anderson v. East, 117 Ind. 126; 1 Beach Pub. Corp., § 744; 2 Dillon 
Munic. Corp., §976. 

258. Fire engines and houses. — 74. The common council may pro- 
cure fire engines and all other apparatus necessary for the extinguish- 
ment of fires, and have the charge and control of the same, and shall 
provide engine and other houses for their preservation and security; 
shall organize, from reputable citizens, fire and hook and ladder com- 
panies and companies auxiliary thereto, and make rules for their gov- 
ernment and regulation, with such penalties for neglect and miscon- 
duct as shall be deemed proper. They may remove members of such 
companies, and appoint others in their stead. R. S. 1894, § 3663. 

259. Power of chief engineer and assistants. — 75. The chief en- 
gineer shall have the superintendence of the fire department. He 
shall see that all apparatus for the extinguishment of fires, belonging 
to the city, is kept in proper order, and, from time to time, report to 
the common council the condition of the same, and the repairs or ad- 
ditions thereto to render the department efficient. He shall appoint 
a first and second assistant engineer, with the advice and consent of 
the common council, who shall act under his directions. Said engi- 
neer and assistants, when clothed with their proper badges, shall 
have authority to require any person present, and not attached to any 
fire company, to work in extinguishing the fire, or in aiding to save 



327 FIRE DEPARTMENT. § 260 

property from destruction or injury, in such places and in such man- 
ner as the said engineer or assistant shall direct; and to order all by- 
standers who are unemployed, or whose assistance is useless, to re- 
move to such distance as the said engineer or assistants may prescribe. 
Said engineer and assistants shall have all the pov/er of police officers, 
during the continuance of a fire, to suppress disturbances, and to ar- 
rest any person who may commit any breach of the peace, or any dep- 
redation or injury to the property of another, or who shall refuse to 
obey any order or direction lawfully given by said engineer or his as- 
sistants, and to conduct the offender before the mayor, or other proper 
magistrate, or, if necessary, to commit him to the county prison or 
jail until a hearing can be had. R. S. 1894, § 3664. 

Chief eng-ineer— Eire board unauthorized.— The common council of a city, incorpo- 
rated under the general law of the state for the incorporation of cities, is not authorized 
to pass ordinances which contravene the express provisions and the clear implications 
of the statute under which the city is incorporated. The creation of a fire board is un- 
authorized and is impliedly forbidden by the statute ; and an attempt by ordinance to 
invest such fire board with powers and duties which the statute imposed upon the com- 
mon council, or upon the chief engineer of the fire department, and which could not be 
delegated, was a palpable violation of the statute, and, therefore, invalid and void. 
Benjamin v. Webster, 100 Ind. 15, 19. See post, § 296, et seq. 

260. Priyileges of firemen. — 76. The engineer and assistants of 
the fire departments, fire wardens and firemen, and members of all 
other auxiliary companies to the fire department established by the 
common council, shall have their names registered with the clerk of 
the city, and his certificate of such registry shall exempt such per- 
sons, for the current year, from serving on juries in all courts, and in 
the militia, except in case of war, invasion or insurrection. R. S. 
1894, § 3665. 

See post, §§ 1150, et seq., and 1312, et seq. 

Firemen— Municipal servants.— Firemen are not servants of the state, nor of the 
county in which they live, but are creatures and servants of the municipality. Hender- 
son, etc., V. The London, etc., Co., 135 Ind. 23. 

261. Destruction of buildings. — 77. When any building in the 
city is on fire, or any building adjacent thereto is liable to take and 
convey fire to other buildings, to the great destruction of property, it 
shall be lawful for the chief engineer, or engineer acting as such, with 
the concurrence of the mayor or any five councilmen, to take down, 
blow up, or destroy the same. And no action shall be maintained 
against any person therefor ; but the person owning or having an 
interest in such building may, within three months thereafter, apply, 
in writing, to the common council to assess the damages sustained 
thereby, and the common council shall appoint three reputable free- 
holders to determine the amount of damages done to the property of 
the complainant by the destruction of such building. Such assess- 
ment shall be made under oath, and subscribed by the persons mak- 
ing the same, and filed with the clerk of the city within ten days from 



§ 262 CITIES. ' 328 

the date of their appointment; but the complainant or corporation 
may, within twenty days thereafter, appeal therefrom to the circuit 
court of the proper county. The damages awarded by the common 
council, or by the judgment of such court, shall be added to the next 
annual levy and collected with the general tax, and paid over to such 
claimant. R. S. 1894, § 3666. 

Destruction of building's lawful— Not a forfeiture.— It is lawful to destroy buildings 
in case of fire when there is reasonable ground to believe that it is necessary. Such de- 
struction of the property is not a forfeiture. Conwell v. Emrie, 2 Ind. 35 ; Baumgartner 
V. Hasty, 100 Ind. 575; Bowditch v. Boston, 101 TJ. S. 16; 1 Beach Pub. Corp., § 748; 2 
Dillon Munic. Corp., §§ 955-958. 

ARTICLE 8.— CITY COURT. 



SEC. 




SEC. 




262. 


Election of judge. 


271. 


Change of venue. 


263. 


Commission — Oath — Bond. 


272. 


Trial. 


264. 


Style and jurisdiction. 


273. 


New trials. 


265. 


Civil causes, when for trial. 


274. 


Appeals. 


266. 


Seal. 


275. 


Execution. 


267. 


Court of record— Effect of judgment. 


276. 


Marshal's and constable's duties — Fees. 


268. 


Process and ser\dce. 


277. 


Judge's fees. 


269. 


Rules — Powers of judge. 


278. 


Judge pro tempore. 



270. Sittingsofcourt— Records— Transcript. 279. Judge may practice law. 

[Acts 1875, p. 49. In force August 24, 1875.] 

262. Election of judge. — 1. The legal voters of any city having a 
population of over five thousand inhabitants may at any regular or 
special election elect a city judge, if the common council, by proper 
order duly entered of record, shall have so directed. Such judge shall 
have the qualifications required of the judge of the circuit court, and 
shall hold his office for the term of four years and until his successor 
shall be elected and qualified. [As amended, Acts 1891, p. 24. In 
force February 20, 1891.] R. S. 1894, § 3667. 

City court— How established— Tenure of Judg-e— Elections.— A resolution of the 
common council which directs the election of a city judge according to this section, 
brings the city under this act, and the judge so elected holds office until his successor is 
elected and qualified, and no further order is required directing future elections. Op- 
penheim v. Pittsburg, etc., R. Co., 85 Ind. 471. 

263. Commission — Oath — Bond. — 2. When the mayor of such 
city shall certify to the governor that said city has a population of 
over six thousand inhabitants, and that a person (naming him) has 
been duly elected to the office of city judge, the governor shall issue 
his commission to such judge, as in like cases. But before such judge 
shall enter upon the discharge of his duties, he shall take and sub- 
scribe to the oath of office as required by judges of the circuit courts, 
and shall execute his bond, with two or more responsible freehold 
sureties, payable to the state of Indiana, in the penal sum of five 
thousand dollars, conditioned that he will faithfully, and to the best 



329 CITY COURT. § 264 

of his ability, perform the duties of his said office, and that he will 
pay over to the persons entitled thereto all moneys that may come 
into his hands by virtue of his office; which bond shall be filed in the 
office of the clerk of the circuit court of such county. R. S. 1894, 
§ 3668. 
261. Style and jurisdiction. — 3. The style of such court shall be, 

the court of the city of , according to the name of the city, and 

shall have original concurrent jurisdiction with justices of the peace 
and with city mayors in all matters criminal and civil of which 
justices of the peace or mayors have or may hereafter have jurisdic- 
tion. And shall also have original concurrent jurisdiction wdth the 
circuit court in civil causes where the amount in controversy does not 
exceed five hundred dollars, except in actions for slander, libel, fore- 
closure of mortgages on real estate or where the title of real estate is 
in issue, excepting all matters relating to the settlement of decedents' 
estates, appointment of guardians and all matters connected there- 
with. Such court shall be governed, so far as may be, by the laws, 
rules, practice and pleadings governing proceedings in the circuit 
courts of the state, except as in this act is otherwise provided. [As 
amended, Acts 1891, p. 24. In force February 20, 1891.] R. S. 1894, 
§ 3669. 

Jurisdiction. — Under this section a city court has concurrent jurisdiction with the 
circuit court of an action for the rescission of a parol contract for the sale of real estate. 
Dotson V. Bailey, 76 Ind. 434. 

Prior to the act of 1875, under the general act for the incorporation of cities of March 
14, 1867, the mayor of a city had exclusive jurisdiction of cases for the violation of city 
ordinances ; and a city judge, elected in pursuance of an ordinance providing that he 
shall possess the judicial power and perform the judicial duties possessed and per- 
formed by the mayor, had no jurisdiction to arraign, try and commit a person to jail 
for the violation of city ordinances. McNuity v. Connew, 50 Ind. 569. 

265. Civil causes, when for trial. — 5. All civil causes triable in 
the city courts shall stand for issue and trial when summons shall have 
been served on the defendant three days or publication had thirty 
days. But the defendant may appear without process and confess a 
judgment for any sum not exceeding one thousand dollars. [As 
amended, Acts 1891, p. 24. In force February 20, 1891.] R. S. 1894, 
§ 3670. 

266. Seal. — 6. Such judge shall provide a seal for such court, 

which shall contain on the face, the words ''city court of , 

Indiana " (filling the blank with the name of the city and county). 
A description of such seal, together with an impression thereof, shall 
be spread on the records of said court. R. S. 1894, § 3671. 

267. Court of record — Effect of judgment. — 7. City courts shall 
be courts of record whose jurisdiction in criminal cases shall extend 
throughout the limits of the county wherein they are situated, and in 
civil cases throughout the limits of the township or townships where- 
in such city is situated. And all its judgments, decrees, orders and 
proceedings shall have the same force and effect as those of the circuit 



§ 268 CITIES. 330 

court, except that the same shall not be a lien on real estate otherwise 
than is provided by taking transcript, and the same shall be en- 
forced in the same manner as liens by transcript from justices of the 
peace in similar cases. [As amended, Acts 1891, p. 24. In force 
February 20, 1891.] R. S. 1894, § 3672. 

268. Process and seryice. — 8. The process of said court shall be 
issued by the judge, and shall have the seal affixed and be attested, 
directed to the sheriff or any constable, or to the marshal of such city, 
served and returned, and be in form as is or may be provided for pro- 
cess issuing from the circuit court. R. S. 1894, § 3673. 

Collateral attack— Jurisdiction— Notice.— A jadgment of the city court can not be 
collaterally attacked, when there is some notice, although it is defective. The decision 
of such court upon a notice before it is the determination of a jurisdictional question. 
Oppenheim v. Pittsburgh, etc., R. Co., 85 Ind. 471. 

269. Rules — Powers of judge. — 9. Such judge shall have full 
power and authority to make and adopt rules and regulations for con- 
ducting the business of said court not repugnant to the laws of this 
state; and shall have all the powers incident to a court of record in 
relation to attendance of witnesses, the punishment of contempts, and 
enforcing its orders, and to issue commissions for taking of depositions 
in cases pending in said court. Such judge shall have full authority 
to administer oaths, to take and certify acknowledgments of deeds and 
other instruments, to solemnize marriage, and to give all necessary 
certificates for the authentication of the records and proceedings in 
said court. R. S. 1894, § 3674. 

270. Sittings of court — Records— Transcript. — 10. Such court 
shall be held in such city, at such place as shall be provided therefor; 
and shall, at all usual business hours, be deemed open for the trans- 
action of any business that may be [brought] before it. Such judge 
shall be his own clerk, issue all process, and shall keep a true and 
correct record of all proceedings had before him. The common coun- 
cil of such city shall provide, for the use of said court, well-bound 
order-books, judgment-dockets, and fee-books, in which said judge 
shall record all orders, judgments, and decrees, and sign the same, 
and enter a minute of all judgments and decrees in the judgment- 
docket, and shall keep a true record of all fees in the proper fee-book 
in the same manner as such records are kept by clerks of the circuit 
courts. Such judgments may only become a lien upon real estate, by 
filing in the ofiice of the clerk of the circuit court a transcript of such 
judgment; and upon the recording of such transcript in the order- 
book of said circuit court, such judgment shall become a lien, the 
same as judgments rendered by such circuit court; and execution may 
issue on such record of such transcript, in the same manner and for 
the same reasons as executions are issued on transcripts from the 
dockets of the justices of the peace; and no real estate, or any interest 
therein, shall be sold on any w^rit issued from said city court. R. S. 
1894, § 3675. 

City judg-e.— A city judge, as a city officer, can not make a vahd contract with the city 



331 CITY COURT. § 271 

for the use of his office as a city court room. ' McGregor v. City of Logansport, 79 Ind. 
166. 

271. Change of venue. — 11. Changes of venue may be taken from 
such court, for such causes and in such manner and upon such terms 
as are provided for changes of venue in causes before justices of the 
peace; and in causes of which justices of the peace have jurisdiction, 
the same shall be sent to some justice of the peace competent to try 
the same; but in cases of changes of venue of all other cases, the same 
shall be sent to the circuit court of the county, where the same shall 
be entered upon the docket of such court, and shall be there tried as if 
originally instituted in said court. R. S. 1894, § 3676. 

272. Trial. — 12. All issues of fact pending in such city court shall 
be tried by the judge, unless either party demand a jury; which jury 
shall consist of six qualified voters of the county (unless the party 
calling for the jury demand twelve jurors), to be summoned by any 
constable, sheriff, or city marshal, by venire issued by the judge. R. S. 
1894, § 3677. 

273. New trials. — 13. New trials may be granted by such judge 
at any time within ten days after rendering judgment, according to 
the usages in the circuit court, notice of the motion therefor having 
been given to the opposite party, unless such motion be made in his 
presence or in the presence of the agent or attorney who conducted 
his suit; and when a new trial is granted, the judge shall set a day 
therefor, and shall cause at least three days' notice to be given to the 
partv against whom such new trial has been granted. R. S. 1894, 
§ 3678. 

The parties may waive the provisions of this section as to time of filing a motion for 
new trial and notice of the motion. Hill v. Hazen, 93 Ind. 109. 

274. Appeals. — 14. Any party may appeal from any final judg- 
ment or decree of such city court to the circuit court of such county, 
within thirty days from the rendition thereof, in the same manner in 
which appeals are taken from the judgment of justices of the peace; 
and such appeal shall be deemed to be properly taken if the same 
would be good if taken from a justice of the peace: Provided, however, 
That when a party shall have acquired any lien by virtue of any 
transcript filed and recorded, as herein provided, from which an ap- 
peal is taken, such lien shall be deemed as continued in force until 
such cause shall be tried and entered of record in the circuit court. 
R. S. 1894, § 3679. 

Appeal — Costs. — On appeal from city courts, in cases in which jurisdiction is given 
them greater than that of justices of the peace, the party recovering judgment is entitled 
to recover costs. Dotson v. Bailey, 76 Ind. 434. 

275. Execution. — 15. Such judge shall issue executions and or- 
ders of sale on all final judgments and decrees as follows: On judg- 
ments and decrees by confession within four days from the rendition 



§ 276 CITIES. 332 

thereof; on all other judgments and decrees, at the expiration of ten 
days from the rendition thereof, unless the same be stayed as provided 
by law; and in such cases he shall issue such executions or orders of 
sale at the expiration of such stay, unless the judgment-plaintiff or 
his attorney shall otherwise direct. All orders of sale and all execu- 
tions, when the amount exceeds three hundred dollars, shall be di- 
rected to the sheriff of the county, and all other executions may be 
directed to any constable of the county or marshal of such city. R. S. 
1894, § 3680. 

276. Marshal's and constable's duties — Fees. — 16. Such judge 
may require the marshal of such city or his deputy or any constable 
to attend his court during the progress of any trial, to preserve order, 
to serve process, and to perform the general duties of bailiff to his 
court. In all cases of which justices of the peace would have juris- 
diction, such marshal or constable shall be allowed such fees as are 
allowed bylaw in such cases in justices' courts; in all other cases they 
shall receive such fees as are allowed by law to the sheriff for like 
services in the circuit court, to be collected as other costs of suit. R. S. 
1894, § 3681. . 

See § 9S, ante. 

277. Judge's fees. — 17. In all cases of which justices would have 
jurisdiction, such judge shall be entitled to and receive the same fees 
as are allowed by law to justices of the peace; in all other cases he 
shall be allowed one dollar for trial, and a docket-fee of one dollar and 
fifty cents in each case, and also such fees as are allowed to the clerks 
of the circuit court for like services; and in cases of jury trials he shall 
receive two dollars, and if such trials shall last more than one day he 
shall have two dollars per day during the continuance of such trial, 
after the first day, to be collected as other costs of suit in the courts of 
this state; and for any other official services such judge may perform 
he shall receive such compensation as is usually allowed by law in 
such cases. R. S. 1894, § 3682. 

278. Judge pro tempore. — 18. If such judge shall desire to be 
absent from such city for more than twenty days, he may appoint any 
attorney-at-law of said county as a judge pro tempore, which appoint- 
ment shall be in writing, and spread on the records of said court. 
Such judge pro ter]%pore having first taken the proper oath, and said 
oath being properly recorded, may, during the absence of said judge, 
perform all the duties of such judge, and be entitled to the fees that 
the judge would be entitled to. Such judge shall be responsible, on 
his bond, for all the acts of such judge pro tempore: Provided, That 
such appointment shall be valid for sixty days only, and no longer. 
R. S. 1894, § 3683. 

279. Judge may practice law. — 19. There being no stated salary 
provided for such judge, he may be permitted to practice law in such 
cases as can not come before him. R. S. 1894, § 3684. 



333 BOARD OF PUBLIC WOKKS. § 280 

ARTICLE 9.— BOARD OF PUBLIC WORKS. 

SEC. SEC. 

280. Board of public works in cities of 288. Employment of laborers. 

fifty thousand. 289. Estimates of cost. 

281. Bonds of members. 290. Power to create liability. 

282. Duties— Salary. 291. Payment on contracts — Statement. 

283. Repair of streets. 292. President and clerk. 

284. Control of street improvements. 293. Preservation of property — Office — 

285. Recommending street improvements. Records — Expenses. 

286. Meetings— Quorum— Record. 294. Appointment of officers. 

287. Record of proceedings. 295. Interfering with board — Penalty. 

[Acts 1891, p. 474. In force March 10, 1891.] 

280. Board of public works in cities of fifty thousand. — 1. That in 
all cities of this state containing more than fifty thousand and less 
than one hundred thousand inhabitants according to the United States 
census of eighteen hundred and ninety, there shall be established 
within and for said cities a board of public works to consist of three 
members, who shall be elected at the first regular city election held 
after the passage of this act, one of whom shall hold for a term of one 
year from the date of his election and until his successor is elected and 
qualified, one of whom shall hold for the term of two years from the 
date of his election and until his successor is elected and qualified, and 
one of whom shall hold for the term of three years from the date of 
his election and until his successor is elected and qualified. That at 
the second and each succeeding regular election held after the passage 
of this act, there shall be elected one member of this board who shall 
hold his ofiice for the term of three years and until his successor is 
elected and qualified. All vacancies occurring by death, resignation, 
removal, or otherwise in the membership of the board before the ex- 
piration of the term for which said member has been elected, the com- 
mon council of the city where such vacancy occurs shall choose some 
person to fill said vacancy until the next regular city election, at which 
time some person shall be elected to fill the unexpired part of said 
vacancy, if any there be: Provided, That no person shall be eligible 
to a membership on said board who is connected in any official capac- 
ity with or employed by any corporation or company interested in any 
contract or operating under any franchise granted by any such city. 
The members of such board of public works shall, before entering 
upon their duties, make and subscribe an affidavit before, and which 
shall be filed with and kept by the city clerk and recorded on the city 
records in the office of the city clerk of such city, to support the con- 
stitution of the state of Indiana, to obey the laws, and in all their of- 
ficial actions and judgments to aim only to secure and maintain an 
honest and efficient administration of public works. R. S. 1S94, 
§ 3685. 

Note— Repeal. — There has been no express repeal of this act, nor decision of court 
holding that it has been repealed by implication, but see general act applicable to cities 
of more than 50,000 and less than 100,000, post, § 541, et seq. 

Leg"isiative interference— Invalid act.— The act of INIarch 8, 1889 (Acts of 1889, p. 



§ 281 CITIES. 334 

247), assuming to give the exclusive control of streets, alleys, sewers, lights, water sup- 
ply, etc., in cities of more than 50,000 inhabitants, to boards of public works, to be 
chosen by the legislature from residents of the cities affected, was held unconstitutional 
and void as denying the right of local self-government, and is omitted. State v. Denny, 
118 Ind. 382. 

281. Bonds of members. — 2. Each member shall give a bond, with 
at least three sureties, in the sum of five thousand ($5,000) dollars, 
conditioned for the faithful performance of his duties, which surety 
shall each be required to take an oath that he is worth the amount of 
the bond above all liabilities, and such bond shall be approved by the 
council of the city for which such board shall have been elected. 
R. S. 1894, § 3686. 

See post, § 597. 

282. Duties — Salary. — 3. The members of the board shall devote 
their entire time and attention to the duties of the office as it requires, 
and shall each receive as compensation a salary of fifteen hundred dol- 
lars per annum, pavable monthly out of the funds of the treasury of 
such city. R. S. 1894, § 3687. 

283. Repair of streets. — 4. The board of public works herein pro- 
vided for shall perform all of the duties heretofore required of the 
street commissioners, which office is hereb}^ abolished, and shall have 
the exclusive power and it shall be its duty to repair and keep in re- 
pair all streets, avenues, alleys, wharves, sewers, ditches, drains, 
parks, bridges, and culverts, and to build and construct all bridges, 
culverts, ditches, and drains, and to have full charge and control of 
the cleaning of streets, alleys, sewers, gutters, wharves and parks. 
R. S. 1894, § 3688. 

284. Control of street improvements. — 5. That whenever the 
common council shall order the improvement of any street, avenue, 
alley, wharf, or the construction of any sewer, it shall designate the 
character and size of such improvement, and thereupon the board of 
public works shall take full and exclusive control of said improvement, 
and cause the same to be constructed and completed in all its parts, 
and for the purpose of executing the same, the said board shall have 
full and exclusive power to make all the proper and necessary con- 
tracts for the construction and completion of said improvements; the 
board shall let all contracts of more than one hundred dollars to the 
lowest responsible bidder. R. S. 1894, § 3689. 

285. Recommending street improvements. — 6. It shall be the duty 
of the board of public works, whenever in their judgment there exists 
a necessity for the improvement of any street, avenue or alley or for 
the building of any sewer, to recommend the same in writing to the 
common council, and it shall be the duty of the common council to 
consider and act upon said recommendation and either approve or re- 
ject it. R. S. 1894, § 3690. 

286. Meetings — Quorum — Record. — 7. The said board of public 
works shall hold regular meetings at least once in every week, and as 



I 



335 BOARD OF PUBLIC WORKS. § 287 

mncli oftener as the business entrusted to its care shall require, and two 
members of any such board shall constitute a quorum for the transac- 
tion of any business, and the ayes and noes shall be called and en- 
tered upon the journal upon the passage of every resolution or order 
of every kind, and no resolution or order shall be adopted unless two 
votes are cast in its favor. Said meetings shall be held at stated times 
and no called meeting shall be held until notice in writing of the 
called meeting, signed by the clerk of the board, has been given to 
each member of any such board about to hold a called meeting, and no 
business shall be done at any such called meeting unless such notice 
in writing has been given. R. S. 1894, § 3691. 

287. Record of proceedings. — 8. That such boards shall keep a 
complete record of all their proceedings, and a copy from the records 
certified by the clerk of any such board shall be competent evidence in 
all courts of this state. R. S. 1894, § 3692. 

288. Employment of laborers. — 9. That such board shall have 
exclusive power to employ such laborers or other persons as any such 
board may deem necessary for the execution of its business, and fix 
their salaries and compensation, and any such employes may be dis- 
charged for cause at any time by the board of public w^orks, at their 
discretion. Such board of public works shall not elect, employ, ap- 
point or contract with any one who is related to any member of such 
board, or the mayor, or any councilman, within the fourth degree of 
consanguinity or affinity under the civil law. R. S. 1894, § 3693. 

289. Estimates of costs. — 10. That when the board shall deem 
it advisable to make a contract for the execution of any work or pur- 
chase of any material for matters under its charge a careful estimate 
shall be made of the cost of such work or material. R. S. 1894, § 
3694. 

290. Power to create liability. — 11. That no member of any such 
board or any other person, whether in the employ of such board or 
otherwise, shall have power to create any liability on account of the 
board, or the funds under its control, except by express authority of 
the board conferred at a meeting duly called and convened. R. S. 
1894, § 3695. 

291. Payment on contracts — Statement. — 12. That no money 
shall be paid at any time to any person claiming under a contract watli 
any such board until such person shall have first filed with such board 
his statement under oath disclosing the names of all persons directly 
or indirectly interested in the contract or the proceeds or profits there- 
of, declaring that no person other than those named are interested, 
and that no person related within the fourth degree of consanguinity 
or affinity under the civil law to the mayor or any councilman, or 
member of such board of such city, has any interest in the same. 
R. S. 1894, § 3696. 

292. President and clerk. — 13. That such board shall select one 
of their number to act as president. The city clerks of such cities 
shall be the clerks of such boards for their respective cities. Such 



§ 293 CITIES. 336 

boards shall, as soon as they shall have been elected and qualified, as- 
sume and exercise the entire control over the streets, alleys, avenues, 
sewers and wharves of such cities. R. S. 1894, § 3697. 

293. Preservation of property — Office— Records — Expenses. — 14. 

It shall be the duty of the common council of such city to provide at 
the expense of such city all necessary accommodation within such 
city limits for the proper care and maintenance of all property coming 
under the control of the board hereby created, and to provide for the pay- 
ment monthly of all officers, members and employes of such board. 
Also for such office expenditures, record books, stationery, telegraph- 
ing, printing, advertising, furniture for rooms and for the preserva- 
tion, repairing and cleaning of the building and rooms occupied and 
used by such board, for fuel and light, it being the intention and 
meaning of this section that the necessary expenses incurred in the 
execution of the duties imposed upon such boards, and the mainte- 
nance of all departments and property hereby placed under the con- 
trol of such board within such city, shall be a charge upon such city. 
All necessary and proper expenditures of whatever character, includ- 
ing the pay of all officers, members and employes of such board, shall 
be audited by such board and a record of the same kept by the clerk, 
and the original bills, vouchers and pay-rolls shall be certified to as 
correct by the president and clerk of such board at the close of each 
month, and the clerk shall lay the same before the common council 
at the first meeting in each month, and the common council of such 
city shall monthly appropriate money for the payment of all sums cer- 
tified by the president and clerk of said board: Provided, That the said 
board may in its discretion cause all expenditures for labor to be 
audited and certified at the close of each week and by the clerk laid 
before the common council at the first meeting in each week for allow- 
ance. R. S. 1894, § 3698. 

294. Appointment of officers. — 15. The board of public works 
shall have full power and authority to appoint such officials and em- 
ployes as shall be necessary for the managing and maintaining of the 
streets, avenues, alleys, wharves, sewers, and parks which come under 
its control, and shall define and prescribe the duties of each and every 
officer or employe so appointed by such board. The city surveyor 
shall be the civil engineer of such board and the city attorney shall 
be their legal adviser. R. S. 1894, § 3699. 

295. Interfering with board — Penalty. — 16. Any person or per- 
sons, or corporations or common council, or other municipal, town- 
ship or county or state officer or officers, who shall in any manner in- 
terfere with or interrupt the board of public works of such city or any 
appointee or employe of theirs in any act while in the legal discharge 
of their duties as provided in this act, or shall prevent such board or 
appointee or employe from discharging their duties as defined in this 
act, shall, upon conviction before the mayor or city judge, or before 
the circuit or criminal judge of said county, be fined not less than one 
hundred dollars nor more than one thousand dollars, to which may 



837 



METKOPOLITAN POLICE AND FIRE DEPARTMENT. 



§ 296 



be added imprisonment for not less than ten days nor more than one 
year for each separate offense. R. S. 1894, § 3700. 



ARTICLE 10.— METROPOLITAN POLICE AND FIRE DEPARTMENT. 



Powers of officers and members. 

Expenses — How and by whom paid. 

Municipal process, how served — Of- 
fice of marshal abolished. 

Fees — Compensation . 

Interfering with commissioners and 
force — Penalty . 

Additional patrolmen. 

Duties as to elections — Penalty. 

Bonds of officers. 

Marshal's fees. 

Metropolitan police boards — Oaths — 
Bonds. 

Appointees of board — Compensation. 

Officers of board — Pay of clerk. 

Rules and regulations. 

Abolition of existing boards and of- 
ficers. 

Powers of policemen. 

Station houses — Expenses of depart- 
ment. 

Duties of policemen — Marshal's of- 
fice abolished. 

Fees and rewards. 

Interfering with board — Penalty. 

Merchant police— Special policemen. 

Political work prohibited. 

Bonds of officers. 

Fees, taxation and payment. 

Repeal. 



[Acts 1891, p. 467. In force March 10, 1891.] 

296. Boards of metropolitan police and lire department in cities of 
fifty thousand. — 1. That in all cities of this state of fifty thousand or 
more, and less than one hundred thousand inhabitants, according to 
the United States census of eighteen hundred and ninety, there shall 
be established within and for such cities a board of metropolitan 
police and fire department, to consist of three commissioners. The 
members of the first board or boards under this act shall be elected by 
the common council of such cities upon the taking effect of this act, 
one of whom shall be of opposite politics to the other two commission- 
ers; one of said commissioners to serve until the second Monday in 
April, 1892, one to serve until the second Monday in April, 1893, and 
one to serve until the second Monday in April, 1894. At the expira- 

ClT. AND To.— 22 



SEC. 




SEC. 


296. 


Boards of metropolitan police and 


317. 




fire departments in cities of fifty 


318. 




thousand. 


319. 


297. 


President, secretary, bond, salary. 




298. 


Appointment of officers and employes 


320. 




— Salaries. 


321. 


299. 


Control of police and fire depart- 






ments. 


322. 


300. 


Appointment of officers of fire depart- 


323. 




ment. 


324. 


301. 


Expenses of department — Payment. 


325. 


302. 


Eules to be made. 


326. 


308. 


Powers of police officers. 




804. 


Service of process — Office of marshal 


327. 




abolished. 


328. 


305. 


No fees or rewards to be received. 


329. 


806. 


Interference with board — Penalty. 


330. 


307. 


Additional patrolmen. 




308. 


Political work prohibited. 


331. 


309. 


Bonds of officers. 


332. 


310. 


Fees taxed and collected. 




311. 


Laws repealed. 


333. 


312. 


Police commissioners in cities of 






twenty-nine thousand. 


334. 


313. 


Officers and patrolmen — Compensa- 


335. 




tion — Removal. 


336. 


314. 


Officers — President — Secretary — 


337, 




Clerk. 


338, 


315. 


Rules and regulations. 


339. 


316. 


Power and authority. 


340. 



§ 297 CITIES. 338 

tion of the term for which said commissioners are elected their suc- 
cessors and succeeding members of the board shall be elected by the 
common council of said cities, and the terms of those thus elected 
shall be three years, their terms always commencing on the second 
Monday in April. In making said elections the common council shall 
always make said board to consist of one commissioner of opposite 
politics to the other two commissioners. All vacancies occurring on 
said board shall be filled by an election by the common council of said 
city, and the commissioner appointed to fill said vacancy shall fill the 
unexpired term of the commissioner in whose place he is elected. 
The mayor shall furnish a certificate to each commissioner so elected, 
and this certificate shall be his authority to act as a member of the 
board of metropolitan police and fire department for the city for which 
he has been so elected by the common council. The said commis- 
sioners shall be qualified voters in such cities at the time of their 
election. Before entering upon their duties they shall each take and 
subscribe an oath of office before tlie clerk of the city, and shall also 
take and subscribe before such clerk the further oath or afiirmation 
that in any and every appointment or removal to be b}^ them made to 
or from the police force, or to or from the fire department, created and 
to be organized by them under this act, they will in no case and un- 
der no pretext appoint or remove any policeman or officer of police, or 
any fireman or officer of the fire department, or other person, because 
of any political opinion held by any such policeman, member of the 
fire department, officer, or other person, or for any other cause or rea- 
son than fitness or unfitness of such person in the best judgment of 
said commissioners, for the place to which he shall be appointed, or 
from which he shall be removed, and the said oath shall be recorded 
and placed among the records of said city. The said commissioners 
shall each give bond in the penal sum of five thousand dollars, pay- 
able to the state of Indiana, conditioned for the faithful and honest 
discharge of their duties, subject to the approval of the council. The 
salary of commissioner shall be four hundred dollars per annum, pay- 
able monthly out of the treasury of such city. Any two of said com- 
missioners for said [city] shall constitute a quorum for the transac- 
tion of business. R. S. 1894, § 3701. 

See post § 326, et seq. 

Repeal, — It is the oiDinion of the compiler that this act {post, §§296-311) has been 
impliedly repealed by the act concerning cities of more than fifty thousand and less 
than one hundred thousand {post, §§541-690), but as there has been no express repeal 
thereof, nor holding of the court to that effect, the same is set forth. 

The metropolitan police and fire department act of March 7, 1889, p. 222, was held un- 
constitutional and void, and is omitted. State v. Denny, 118 Ind. 449; City of Evans- 
ville V. State, 118 Ind. 426; State v. Blend, 121 Ind. 514. 

297. President, secretary, bond, salary.— 2. The said commis- 
sioners shall elect one of their number to act as president, who shall 
be ex officio a member of the board of health of such city, and they 
shall appoint some person not a member of the board to act as secre- 



339 METKOrOLITAN POLICE AND FIRE DEPARTMENT. § 298 

tary and property cierk, who shall give bond to said board in any 
amount, and with sureties, to be approved by said board conditioned 
for the safe keeping b}^ and his rendition upon, the order of the 
board, of all money and other property which shall come into his 
hands by virtue of his office, and he shall receive such compensatiori 
annually as may be determined by said board, not to exceed three hun- 
dred and fifty dollars per annum, and hold his office at the pleasure of 
said board. R. S, 1894, § 3702. 

298. Appoiutment of officers and employes — Salaries. — 3. The 
said board of metropolitan police and fire department shall have power 
to select a superintendent of police, captains and sergeants, detectives 
and such other officers and patrolmen as the board may deem advisa- 
ble. Said captains, sergeants, detectives and other oiiicers and patrol- 
men to be so selected that not more than one-half of their number shall 
belong to the same political party. Said board shall not have power 
to appoint more than one patrolman for each ten hundred inhabit- 
ants of said city. Such superintendent, captains, officers and patrol- 
men shall receive such compensation as the board shall determine: 
Provided, That the compensation for a superintendent shall not be less 
than one thousand dollars nor more than two thousand dollars per 
annum; that the compensation for a captain shall not be less than 
seven hundred dollars nor more than tv/elve hundred dollars per an- 
num; that the compensation for a sergeant shall not be less than six 
hundred dollars per annum nor more than one thousand dollars per 
annum; that the compensation for patrolmen shall not be less than 
five hundred and fifty dollars per annum nor more than eight hun- 
dred dollars per annum. The compensation for all other officers and 
employes shall be fixed and determined by the board, as, in the judg- 
ment of the board, will be reasonable, and to promote good government 
in such cities: Provided, That no employe, except as herein provided, 
shall receive more than one thousand dollars per annum. All per- 
sons so appointed shall serve during good behavior, and be able to 
speak the English language. Said board shall have power, for cause, 
to remove or suspend from office, at any time, the superintendent, 
captains, sergeants, detectives and such other officers and patrolmen 
of such police force whenever, in the judgment of the board, it is 
deemed that such removal or suspension would promote the efficiency 
of said police force. Said board shall have povver to make general 
and special rules and regulations for the government and discipline of 
said force, and to make and promulgate general and special orders to 
said force, through the superintendent of police, who shall be the e^i- 
ecutive head of the force. R. S. 1894, § 3703. 

299. Control of police unci ire departments. — 4. Said commis- 
sioners shall, immediately after their organization, assume and exer- 
cise the entire control of the police force and fire department of such 
city, and shall possess full, exclusive power and authority over the 
police organization, government, appointment and discipline vrithin 
the city, and over the fire department, its organization, government, 



§ 300 CITIES. 340 

appointment and discipline within the city. The said board shall 
have the custody and control of all public property, including station- 
houses and city prisons, patrol wagons, books, records and equip- 
ments, belonging to the police department. All engine-houses, en- 
gines, ladders, hose-reels, horses, wagons, books, records and equip- 
ments, and property of every description belonging to the fire 
department of such city. All existing police and fire boards, police 
officers, police forces, chief fire engineers, firemen and employes of the 
fire department created, maintained and employed by the ordinances, 
or resolutions of the common council of such city, or under any law 
of the state of Indiana, are hereby abolished and made unlawful, the 
same to take effect upon the organization of the board of metropolitan 
police and fire department for such city created by this act. R. S. 
1894, § 3704. 

Police property — Injunction. — Where it is sought to take possession of the police 
property of the city, without authority of law, those in possession may protect their 
rights and the rights of the city by injunction. City of Huntington v. Cast, 149 Ind. 
255. 

300. Appointment of officers of fire department. — 5. The said 
board of metropolitan police and fire department shall, immediately 
after the organization, assume and exercise the entire control of the 
fire department of said city. It shall appoint a chief fire engineer, at 
a salary not exceeding two thousand dollars; appoint firemen and all 
necessary employes of the fire department and fix their compensation. 
Said firemen and employes to be so selected that not more than one- 
half of their number shall belong to the same political party. Ail 
persons so appointed shall serve during good behavior, and shall be 
of good moral character. Said board shall have power, for cause, to 
remove or suspend from office the chief fire engineer, firemen or other 
employes whenever it is deemed by said board that such removal or 
suspension would promote the efficiency of said fire department. Said 
board shall have power to make general and special rules and regula- 
tions for the government and discipline of said fire department, and 
to make and promulgate general and special orders to said fire depart- 
ment, through the chief fire engineer, who shall be the executive 
head of the department. R. S. 1894, § 3705. 

301. Expenses of department— Payment. — G. It shall be the duty 
of the common council of such city to provide at the expense of such 
city, all necessary accommodations within such city limits, for station- 
houses, engine houses, hook and ladder houses, to furnish the same, 
to warm and light the same by day and night, and provide food for 
persons detained in the station-house, to provide at the expense of the 
city for the expense of the fire department incurred in purchase of en- 
gines, ladders, hose, horses or other necessary equipments ordered by 
the said board, and for all the expenses incurred by said board in ad- 
ministering the fire department of said city. Also for such office ex- 
penditures, records, books, stationery, printing, furniture, and for the 



341 METROrOLITAN POLICE AND FIRE DEPARTMENT. § 302 

preservation, repair and cleaning of all buildings belonging to or in 
any way connected with the police and fire department of said city, it 
being the intention and meaning of this section that all the necessary 
expenses of executing the duties imposed upon said boards and the 
maintenance of all departments herein created and placed under the 
control of such boards shall be a charge upon the city, and the board 
alone shall be authorized to incur expenditures for said department of 
police and fire. All expenditures of whatever character, including 
the pay of ail officers, members, employes of the police and fire de- 
partments, shall be audited by the said board, and a record of the 
same kept by the secretary, and the original bills, vouchers and pay 
rolls shall be certified to as correct by the president and secretary of 
said board at the close of each week and deposited with the city clerk, 
w^ho shall lay the same before the common council at the first meeting 
in each week, and the common council of such city shall weekly ap- 
propriate money for the payment of all sums certified by the president 
and secretary of said board. R. S. 1894, § 3706. 

302. Rules to be made. — 7. The qualifications, enumeration and 
distribution of duties, and mode of trial and removal from office of 
each officer and member of the police force and fire department, shall 
be particularly defined and prescribed by rules and regulations of the 
board. R. S. 1894, § 3707. 

303. Powers of police officers. — 8. The officers and members of 
such metropolitan police force shall possess all the common law and 
statutory powers of constables, except for the service of process. R. S. 
1894, § 3708. 

See ante, § 95. 

Police officer — Arrest without warrant. — A police officer may make an arrest upon 
view without a warrant where he has seen the agent of a brewing company at his place 
of business make a gift of a bottle of beer to a third person on the day of a general state 
election. Weser v. Welty, 18 App. 664. 

A police officer, after making an arrest at a time of day so early that the mayor of the 
city is not at his office, and no other magistrate can be found, may incarcerate the pris- 
oner in a jail for a brief period until he can be brought before a magistrate to answer to 
the charge. Weser v. Welty, 18 App. 664. 

304. Service of process—Office of marshal abolished. — 9. The 

members of the metropolitan police force shall have the exclusive 
power and it shall be their duty, to serve all process within such city 
issuing from the mayor or city judge^s court of such city, and all the 
duties performed by the city marshal, or his deputy, in serving writs, 
executing orders of said court, attending said court, conveying pris- 
oners to and from the county jail or station-house of such city for ar- 
raignment on trial before said court, or conveying prisoners to the 
house of correction or work-house, or county jail, or other places of 
punishment and imprisonment under the judgment, sentence, or 
order of process of said court, shall be performed by members of said 
metropolitan police force, and the ofiice of city marshal of such city 
is hereby abolished; and the duties of such office shall hereafter be 



§ 305 ' CITIES. 342 

performed by the superintendent of the metropolitan police force of 
such cit}^, and bv the captains or sergeant of police, under his direc- 
tion. R. S. 1894, § 3709. 

305. No fees or rewards to be received. — 10. No officer or mem- 
ber of the metropolitan force shall receive for any service rendered by 
him in the discharge of any police duty, or as witness in any case be- 
fore the mayor or city judge, for any duty performed as bailiff of such 
court, any fee or compensation whatever, except the regular fixed per 
diem or yearly allowance made for his services as officer or member of 
such police force. Any rewards received by any officer or member of 
such police force shall be turned over to the secretary of said board 
for the support of the metropolitan police. R. S. 1894, § 3710. 

306. Interference with board — Penalty. — 11. Any person or per- 
sons, or corporation or common council, or other municipal, township, 
county or state officer or officers, who shall in any manner interfere 
with or interrupt the board of metropolitan police and fire department 
of such city in any act of theirs, while in the legal discharge of their 
duties, as provided in this act, or of the police force or fire depart- 
ment force herein authorized to be created, or shall prevent such 
board or forces from discharging their duties as defined in this act, 
shall, upon conviction before the mayor or city judge, or before the 
circuit or criminal court of the county in which such city is situated, 
be fined not less than one hundred dollars nor more than one thousand 
dollars, to which may be added imprisonment for not less than ten 
days nor more than ninety days, for each separate offense. R. S. 
1894, § 3711. 

307. Additional patrolmen.— 12. The board, wdienever it shall 
seem to the board discreet, may, on the application of any person or 
persons, showing the necessity thereof, appoint and swear in any 
number of additional patrolmen to do duty at any place within said 
city, at the charge and expense of the person or persons by whom the 
application shall be made; and the patrolmen so appointed shall per- 
form duty only at the place designated by said board. They shall 
continue in office, at the pleasure of the board for a term not exceed- 
ing one year, shall be subject to and obey the orders, rules and regu- 
lations of said board, and conform to the general discipline of the 
police force of such city, and to such special regulations as may be 
miade by such board for their government. The board may, upon 
emergencies, with the written consent of the mayor of such city, ap- 
point such number of special patrolmen as they may deem advisable, 
but such special patrolmen shall serve for not exceeding seven con- 
secutive days, unless their employment for a longer period shall be 
approved by the board of metropolitan police and fire department of 
such city; and special patrolmen shall be paid in the same manner 
and at the same rate as herein provided for the regular police force. 
R. S. 1894, § 3712. 

308. Political work prohibited. — 13. It shall be unlawful for any 
patrolman or other member of said police force, or of any fireman. 



343 METROPOLITAN POLICE AND FIRE DEPARTMENT. § 309 

employe or member of the fire department while on duty to solicit any 
person to vote at a general or special election, for any candidate or 
candidates for office, or to challenge any votes, or in any manner at- 
tempt to influence any elector at such election, or to be a delegate or 
candidate to any political convention. And any patrolmen or other 
member of the police force, any fireman, member or employe of the 
fire department so offending shall be fined in any sum not less than 
ten dollars nor more than fifty dollars, and be dismissed from service. 
R. S. 1894, § 3713. 

309. Bonds of officers. — 14. The superintendent, captains, and 
other officers of the police force, and the chief fire engineer shall each 
give bond in the penal sum of one thousand to three thousand dollars, 
to be determined by the board, conditioned for the faithful discharge 
of their several duties. R. S. 1894, § 3714. 

310. Fees taxed and collected. — 15. The fees taxed and allowed 
to city marshals shall be taxed and allowed in all cases where the ar- 
rests are made, or process served by any of the police force of said 
cities in favor of said city, shall be collected and shall be paid into 
the city treasury of said city by the officers, or party, or person col- 
lecting the same, every three months. R. S. 1894, § 3715. 

311. Laws repealed. — 16. All laws, and parts of laws coming in 
conflict with this act, be and the same are hereby repealed, especially 
an act providing for a metropolitan police in cities of twenty-nine 
thousand inhabitants, and reconsidered March 5, 1883, and again 
passed, notwithstanding the objections of the governor, Acts 1883, 
page 89, so far as the same affects or applies to cities containing more 
than fifty thousand and less than one hundred thousand inhabitants, 
according to the United States census of eighteen hundred and ninety. 
R. S. 1894, § 3716. 

[Acts 1883, p. 89. In force March 5, 1883.] 

312. Police commissioners in cities of ten thousand to thirty -fiye 
thousand. — 1. That in all cities of this state of ten thousand inhabi- 
tants, according to the United States census of 1890, or accord- 
ing to a census taken under the authority of the mayor of said 
city, and not exceeding thirty-five thousand inhabitants, accord- 
ing to the United States census of 1890, there shall be estab- 
lished within and for said cities a board of metropolitan police, 
to consist of three commissioners, to be appointed by the governor. 
The said commissioners to be so appointed shall be of a good moral 
character, sober and discreet, who are citizens of the state of Indiana, 
and shall have resided in said city at least five years next preceding 
their appointment, no more than two of whom shall be of the same 
political party; one of said commissioners to serve until the first Tues- 
day of January, 1894; one to serve until the first Tuesday of January, 
1895, and one to serve until the first Tuesday of January, 1896, and 
the term of their successors to be for three years, and each of said 
commissioners shall be subject to removal by the governor. Before 



§ 313 CITIES. 344 

entering upon their duties they shall each take and subscribe an oath 
of office before the clerk of the circuit court of the county within 
which such city is located, and shall also take and subscribe before 
such clerk the further oath or affirmation that, in any and every ap- 
pointraent or removal to be by them made to or from the police force 
created and to be organized by them under this act, they shall in no 
case and under no pretext appoint or remove any policeman, officer of 
police or other person because of any political feeling held by such 
policeman, officer or other person, or for any cause or reason than fit- 
ness or unfitness of such person, in the best judgment of said commis- 
sioners, for the place to which he shall be appointed or from w^hich he 
may be removed, and the said oath shall be recorded and placed 
among the records of said court. Said commissioners shall each give 
bond in the penal sum of five thousand dollars, payable to the state of 
Indiana, conditioned for the faithful and honest discharge of their du- 
ties, which bond shall be approved by the governor. The salary of 
the board of metropolitan commissioners of such city shall be fixed by 
the governor, which salary shall not exceed six hundred dollars each 
per annum, payable monthly out of the treasury of such cities. [As 
amended, Acts "1893, p. 284. In force March 3, 1893.] R. S. 1894, 
§ 3717. 

Note. — As to cities of more than 35,000 and less than 49,000 see later legislation, post, 
§691, et seq. ; Department of Public Safety, post, §§ 787-800. As to cities of more than 
23,000 and less than 35,000 see later legislation, post, § 828, et seq. ; Department of Pub- 
lic Safety, post, §§934-948. 

Hepeal. — It is the opinion of the compiler that this entire act (§§312-325) was im- 
pliedly repealed by the act of February 28, 1897 (post, §§326-340), but as it was not ex- 
pressly repealed, and has not been held to have been repealed, it is here set forth. 

Amendments — Eepeal. — Section 1 of the act of 1883 was amended by the act of March 
4, 1891, making it applicable to cities having 14,000 school children, and such amend- 
ment was held valid. State v. Kolsem, 130 Ind. 434. 

The act of March 7, 1889, Acts 1889, p. 222, providing for the appointment of police 
commissioners in cities of 29,000 inhabitants being unconstitutional, such act did not 
repeal the act of March 5, 1883, which is herein set forth as amended. City of Evans- 
ville V. State, 118 Ind. 426; State v. Denny, 118 Ind. 449; State v. Blend, 121 Ind. 514. 

The act of March 5, 1883, was held constitutional and capable of enforcement, except 
in so far as it made, by § 1, a residence of three years in the city in which he is ap- 
pointed next preceding his appointment a condition of a police commissioner's eligi- 
bility, and provides for the appointment of the officers named in § 2 equally from the 
two leading political parties State v. Blend, 121 Ind. 514; State v. Denny, 118 Ind. 
449 ; City of Indianapolis v. Huegele, 115 Ind. 581. 

313. Officers and patrolmen — Compensation — Removal, — 2. The 

said board of metropolitan police commissioners shall have power to 
appoint a superintendent of police, captains, sergeants, detectives and 
^uch other officers and patrolmen as they may deem advisable, said 
captains, sergeants, detectives and such other officers and patrolmen, 
to be appointed equally between the two leading political parties of 
said city. Said commissioners shall not have power to appoint more 
than one patrolman for each ten hundred inhabitants in such city. 



345 METROPOLITAN POLICE AND FIRE DEPARTMENT. § 314 

Such superintendent, captain, officers and patrolmen shall receive 
such compensation as the commissioners shall determine: Provided, 
That the compensation for a superintendent shall not be less than one 
thousand dollars nor more than fifteen hundred dollars per annum; 
that the compensation for a captain shall not be less than seven hun- 
dred dollars nor more than one thousand dollars per annum; that the 
compensation for a sergeant shall not be less than six hundred dollars 
nor more than eight hundred dollars per annum; that the compensa- 
tion for patrolmen shall not be less than five hundred and fifty dollars 
nor more than seven hundred and thirty dollars per annum. The 
compensation of all other officers and employes shall be fixed and de- 
termined by the commissioners, as in their judgment will be reason- 
able, and to promote good government in such cities. All persons so 
appointed shall serve during good behavior, and shall be of good 
moral character, and be able to speak the English language. Such 
commissioners shall have power, for cause assigned on a public hear- 
ing, and on due notice, according to rules to be promulgated by them, 
to remove or suspend from office, or for a definite period deprive of 
pay, any officer or member of such police force (except that detectives 
may be dismissed at any time by said commissioners); and they 
shall have power to make general and special rules and regulations 
for the government and discipline of said force, and to make and 
promulgate general and special orders to said force, through the super- 
intendent of police, who shall be the executive head of the force. R. 
S. 1894, § 3718. 

The provision of this section requiring officers and patrolmen to be appointed from 
different political parties is unconstitutional. State v. Denny, 118 Ind. 449; State v. 
Blend, 121 Ind. 514; City of Evansville v. State, 118 Ind. 426. 

314. Officers — President — Secretary — Clerk. — 3. The said commis- 
sioners shall appoint one of their number to act as president, who shall 
be ex officio a member of the board of health of such city, and they 
shall appoint some person not a member of the board to act as secre- 
tary and property clerk, who shall give bond to said commissioners in 
an amount and with sureties to be approved by said commissioners, 
conditioned for the safe keeping by, and his rendition upon, the order 
of the commissioners, of all money and other property which shall 
come into his hands by virtue of his office, and he shall receive such 
compensation annually as may be determined by said commissioners, 
not to exceed one thousand dollars per annum, and hold his office at 
the pleasure of the commissioners. R. S. 1894, § 3719. 

315. Kules and regulations. — 4. The qualifications, enumeration 
and distribution of duties, and mode of trial and removal from office 
of each officer and member of said police force, shall be particularly 
defined and prescribed b}^ rules and regulations of the commissioners 
of police. R. S. 1894, § 3720. 

316. Power and authority. — 5. Said commissioners shall, as soon 
as they shall have been appointed and qualified, assume and exercise 
the entire control of the police force of such city, and shall possess 



§ 317 CITIES. 346 

full and exclusive power and authority over the police organization, 
government, appointment and discipline within the city. It shall have 
the custody and control of all public property, including station- 
houses and city prisons, patrol wagons, books, records, and equip- 
ments belonging to the police department. All existing police 
boards, police officers, police forces, created and maintained by the 
ordinances or resolutions of the board of aldermen or common coun- 
cil of such city, are hereby abolished, to take effect upon the organ- 
ization of the board of metropolitan police commissioners of such city. 
R. S. 1894, § 3721. 

317. Powers of officers and members. — 6. The officers and mem- 
bers of such metropolitan police force shall possess all the common 
law and statutory powers of constable, except for the service of civil 
process. R. S. 1894, § 3722. 

318. Expenses — How and by whom paid. — 7. It shall be the duty 
of the board of aldermen and board of common council of such city as 
shall have two such boards, and of the common council of such city 
w^here but one of such boards exist, to provide, at the expense of such 
city, all necessary accommodations within such city limits, for station- 
houses, to furnish the same, to warm and light the same by day and 
night, and to provide food for person or persons detained in any of 
said station-houses, when such food is deemed necessary for such per- 
son or persons by the officer in charge. Also to provide for payment, 
monthly, of the pay-rolls of the officers, members, and employes of 
such board of metropolitan police commissioners, upon the certificate 
of the president and secretary of such board as to the correctness of 
the same; also for such necessary office expenses, record-books, sta- 
tionery, printing, telegraphing, badges, clubs, furniture for rooms, 
and for the preservation, repair, and cleaning of the buildings and 
rooms used by the commissioners, for advertising, fuel, light, board 
of prisoners, it being the intention and meaning of this section that 
the necessary expenses incurred in the execution of criminal process 
for offenses charged to have been committed in such city, by the board 
of metropolitan police commissioners, and the maintenance of the 
police department hereby created v/ithin such city, shall be a charge 
to such city. R. S. 1894, § 3723. 

319. Municipal process, how served — Office of marshal abolished. — 
8. The members of the metropolitan police force shall have the ex- 
clusive power, and it shall be their duty, to serve all process within 
such city issuing from the mayor or city judge's court of such city, 
and all the duties now performed by the city marshal or his deputy in 
serving writs, executing orders of said court, attending said court, 
conveying prisoners to and from the county jail or station-houses of 
such city, for arraignment on trial before said court, or conveying 
prisoners to the house of correction or work house, reform school, or 
county jail, or other place of punishment and imprisonment, under 
the judgment, sentence, or order of process of said court, shall be per- 
formed by members of said metropolitan police force; and the office df 



347 METEOPOLITAX POLICE AND FIRE DEPARTxMENT. § 320 

city marshal of sucli cit}^ is hereby abolished; and the duties of such 
ofhce shall hereafter be performed by the superintendent of the metro- 
politan police force of such city, or by the captains or sergeants of po- 
lice, under his direction. R. S. 1894, § 3724. 

320c Fees — Compensation. — 9. No officer or member of such met- 
ropolitan police force shall receive, for any service rendered by him 
in discharge of any police duty, or as witness' in any case before the 
mayor or city judge for any duty performed as bailiff of such court, 
any fee or compensation whatever, except the regular fixed per diem 
yearly allowance made for his services as officer or member of such 
police force. Any rewards received by any officer or member of such 
police force shall be turned over to the secretary of said board of com- 
missioners for the support of the metropolitan police, as in this act 
provided. R. S. 1894, § 3725. 

321. Interfering isitk commissioners and force— Penalty. — 10. 
Any person or persons, or corporation, or common council, or other 
municipal, township, county or state officer or officers, who shall in 
any manner interfere with or interrupt the board of metropolitan po- 
lice commissioners of such city in any act of theirs while in the legal 
discharge of their duties, as provided in this act, or of the police force 
herein authorized to be created, or shall prevent such board or force 
from discharging their duties, as defined in this act, shall, upon con- 
viction before the mayor or city judge, or before the circuit or crimi- 
nal court of said county, be fined not less than one hundred dollars 
nor more than one thousand dollars, to which may be added impris- 
onment for not less than ten days nor more than ninety days, for each 
separate offense. R. S. 1894, § 3726. 

This section is constitutional, and a city ordinance covering the same ground is in- 
valid. City of Indianapolis v. Huegele, 115 Ind. 581. 

322. Additional patrolmen.— -11. The commissioners, whenever it 
shall seem to them discreet, may, on the application of any person or 
persons showing the necessity thereof, appoint and swear in any num- 
ber of additional patrolmen to do duty at any place within said city, at 
the charge and expense of the person or persons by whom the appli- 
cation may be made, and the patrolmen so appointed shall perform 
duty only at the place designated by said commissioners. They shall 
continue in office at the pleasure of said commissioners for a term not 
exceeding one year, shall be subject to and obey the orders, rules and 
regulations of said commissioners, and conform to the general discip- 
line of the police force of such city, and to such special regulations as 
may be made by such commissioners for their government. And the 
persons so appointed may be removed at any time by the commis- 
sioners. The commissioners may upon emergency, with the written 
consent of the governor, secretary, treasurer and auditor of state, or a 
majority of them, and the mayor of said city, appoint such number of 
special patrolmen as they may deem advisable, but such special patrol- 
men shall serve for not exceeding seven consecutive days, unless their 



§ 323 CITIES. 348 

employment for a longer period shall be approved of b}^ the board of 
police commissioners of such city. And the said special patrolmen 
shall be paid in the same manner as hereinbefore provided for the 
regular force. [As amended, Acts 1891, p. 90. In force March 4, 
1891.] R. S. 1894, § 3727. 

323. Duties as to elections — Penalty. — 12. It shall be unlawful 
for any patrolman or other member of said force, while on duty, to 
solicit any person to vote at any general or special election, for any 
candidate or candidates for office, or to challenge any voter, or in any 
manner attempt to influence any elector at such election, or to be a 
delegate or candidate to any political convention, or to solicit votes 
for any candidate for any delegate to any such convention. And any 
patrolman or other member of said force so offending shall be fined 
in any sum not less than ten dollars nor more than fifty dollars, and 
be dismissed from the service. R. S. 1894, § 3728. 

324. Bonds of officers. — 13. The superintendent, captains and 
other officers of said force shall each give bond in the penal sum of 
from one thousand dollars to three thousand dollars, to be determined 
by the commissioners, conditioned for the faithful discharge of their 
several duties. R. S. 1894, § 3729. 

325. Marshal's fees.- — 14. The fees fixed and allowed to city mar- 
shals shall be taxed and allowed, in all cases where the arrests are 
made or process served by any of the police force of said cities, in 
favor of said city, and shall be collected in the same manner as other 
costs are collected, and shall be paid into the city treasury of said city 
by the officers or party, or person collecting the same, every three 
months. R. S. 1894, § 3730. 

See ante, § 95. 

[Acts 1897, p. 90. In force Febman^ 28, 1897.] 

326. Metropolitan police boards — Oaths — Bonds. — 1. That in all 
cities of this state of ten thousand inhabitants, according to the United 
States census of 1890, or according to a census taken under the au- 
thority of the mayor of said city, and not exceeding thirty-five thou- 
sand inhabitants, according to the United States census of 1890, there 
shall be established within and for said cities a board of metropolitan po- 
lice commissioners, to consist of three members to be appointed by the 
governor. The said commissioners to be so appointed shall be of good 
moral character, sober and discreet, who are citizens of the state of 
Indiana, and bona fide residents of the cit}^ for which they are ap- 
pointed, no more than two of whom shall be of the same political par- 
ty; one of said commissioners to serve until the fi^rst Tuesday of Jan- 
uary, 1898; one to serve until the first Tuesday of January, 1899; and 
one to serve until the first Tuesday of January, 1900, and the term of 
their successors to be for three years, and each of said commissioners 
shall be subject to removal by the governor for any cause which he 
may deem sufficient. Before entering upon their duties they shall 
each take and subscribe an oath of office before the clerk of the circuit 



349 METROPOLITAN POLICE AND FIRE DEPARTMENT. § 327 

court of the county within v/hich such city is located, and shall also 
take and suhscribe before such clerk, the further oath or afhrrnation 
that, in any and ever}^ appointment or removal to be by them made, 
to or from the police force created and to be organized by them under 
this act, they shall in no case and under no pretext appoint or remove 
any policeman, officer of police or other person because of any politi- 
cal feeling held by such policeman, officer or other person, or for any 
cause or reason other than that of fitness or unfitness of such person, 
in the best judgment of said commissioners, for the place to which he 
shall be appointed or from which he may be removed, and the said 
oath or affirmation shall be recorded and placed among the records of 
said court. Said commissioners shall each give bond in the penal 
sum of five thousand dollars, payable to the state of Indiana, condi- 
tioned for the faithful and honest discharge of their duties, which 
bond shall be approved by the governor. The salary of the board of 
metropolitan police commissioners shall be fixed by the governor, 
which shall not exceed six hundred dollars each per annum, payable 
monthly out of the treasury of such cities. Burns' Supp. 1897, 
§ 3730a. 

See ante, § 296, et seq. 

Repeal. — It is the opinion of the compiler that this act (§§ 326-340) is not now in 
force except as to cities of not less than 10,000 nor more than 23,000. See acts concern- 
ing cities of more than 23,000 and less than 35,000, post, § 828, et seq. 

Census, — A census taken by the mayor under this section must be an official enroll- 
ment of the people of the city, and must be a public document preserved in the archives 
of the city subject to the inspection of all those interested. City of Huntington v. Cast, 
149 Ind. 255. 

Census — Judicial notice. — Courts will take judicial notice of a census or other enu- 
meration made under the authority of the state, or of the United States. City of Hunt- 
ington V. Cast, 149 Ind. 255; Denny v. State, 144 Ind. 503. 

Appointment of commissioners by g'overnor— Validity of, — Tinder this section, the 
governor's right to appoint is determined by the statement as to population certiiied to 
him by the mayor; but if the mayor's certificate is not based upon a census, such as is 
contemplated by the statute, the appointments have no validity. City of Hunting- 
ton V. Cast, 149 Ind. 255 ; Board, etc., v. State, 61 Ind. 379 ; State v. Harrison, 113 Ind. 434. 

327. Appointees of board — Compensation. — 2. Tlie said board of 
metropolitai;! police commissioners shall have the power to appoint a 
superintendent of police, captains, sergeants, detectives and such other 
officers and patrolmen as they may deem advisable. Not more than 
one each of said captains, sergeants, detectives and other officers shall 
belong to the same political party, and not more than oiae-half of the 
total number of such officers and patrolmen, excluding the superin- 
tendent of police, shall belong to the same political party. Said com- 
missioners shall not have the power to appoint more than one patrol- 
man for each ten hundred inhabitants in such city, and shall not have 
power to appoint more than one officer, excluding the superintendent 
of police, for each five thousand inhabitants in such city Such su- 
perintendent, captains, officers and patrolmen shall receive such com- 



§ 328 CITIES. 350 

pensation as the commissioners shall determine: Provided, That the 
compensation for a superintendent shall not be less than Dine hundred 
dollars nor more than twelve hundred dollars per annum; that the 
compensation for a captain shall not be less than seven hundred dol- 
lars nor more than nine hundred dollars per annum; that the compen- 
sation for a sergeant shall not be less than six hundred dollars nor 
more than eight hundred and forty dollars per annum; that the com- 
pensation for patrolmen shall not be less than five hundred and fifty 
dollars nor more than seven hundred and thirty dollars per annum. 
The compensation of all other officers and employes shall be fixed and 
determined by the commissioners, as in their judgment will be rea- 
sonable, and to promote good government in such cities. All persons 
so appointed shall serve during good behavior, and shall be of good 
moral character and be able to speak and write the English language. 
Such commissioners shall have power, for cause assigned on a public 
hearing, and on due notice according to rules to be promulgated by 
them, to remove or suspend from office, or for a definite period de- 
prive of pay, any officer or member of such police force, except that 
detectives may be dismissed at any time by said commissioners; and 
they shall have povv^er to make general and special rules and regula- 
tions for the government and discipline of said force, and to make and 
promulgate general and special orders to said force, through the su- 
perintendent of police, who shall be the executive head of the force. 
Burns' Supp. 1897, § 37305. 

328. Officers of board — Pay of clerk. — 3. The said commission- 
ers shall appoint one of their number to act as president, who shall 
be ex officio a member of the board of health of such city, and they 
shall appoint some officer or member of the police force, not a mem- 
ber of the board, to act as secretar}^ and property clerk, who shall give 
bond to said commissioners in an amount and with sureties to be ap- 
proved by said commissioners, conditioned for the safe keeping by, 
and his rendition, upon the order of the commissioners, of all money 
and other property which shall come into his hands by virtue of his 
office, and he shall receive such compensation annually, not exceed- 
ing the pay of a captain, as may be determined by said commissioners, 
and hold his office at the pleasure of the commissioners, and said sec- 
retary and property clerk, in addition to the duties herein designated, 
shall perform such other duties as an officer of police or patrolman as 
the commissioners shall order through the superintendent of police, 
and for such additional services said secretary and property clerk 
shall receive no additional pay. Burns' Supp. 1897, § 3730c. 

329. Rules and regulations. — 4. The qualifications, enumerations 
and distribution of duties, and mode of trial and removal from office 
of each officer and member of said police force, shall be particularly 
defined and prescribed by rules and regulations of the commissioners 
of police. Burns' Supp. 1897, § 3730(i. 

330. Abolition of existing boards and officers. — 5. Said commis- 
sioners shall, as soon as they shall have been appointed and qualified. 



351 METROPOLITAN POLICE AND FIEE DEPARTMENT. § 331 

assume and exercise the entire control of the police force of such city, 
and shall possess full and exclusive power and authority over the 
police organization, government, appointment and discipline within 
the cit}^ It shall have the custody and control of all public prop- 
erty, including station-houses and city prisons, patrol wagons, books, 
records and equipments belonging to the police department. All ex- 
isting boards of police commissioners, police officers, police forces, 
created and maintained by the ordinances or resolutions of the board 
of aldermen or common council of any such city, or by the provisions 
of any statute of this state, are hereby abolished to take effect upon 
the organization of the board of metropolitan police commissioners of 
such city, hereby created. Burns' Supp. 1897, § 3730e. 

331. Powers of policeman. — 6. The officers and members of such 
metropolitan police force shall possess all the common lav\^ and statu- 
torv powers of constable, except for the service of civil process. 
Burns' Supp. 1897, § 3730f. 

See ante, § 95. 

332. Station-iiouses — Expenses of department, — 7. It shall be 
the duty of the board of aldermen and board of com^mon council of 
such city as shall have two such boards, and of the common council 
of such city where but one of such boards exist[s] , to provide, at the 
expense of such city, all necessary accommodations within such city 
limits, for station-houses, to furnish the same, to warm and light the 
game by day and night, and to provide food for any person or per- 
sons detained in any of said station-houses, when such food is deemed 
necessary for such person or persons by the officer in charge. Also, 
to provide for payment, monthly, of the pay-rolls of the officers, 
members, and employes of such board of metropolitan police com- 
missioners, upon the certificate of the president and secretary of such 
board as to the correctness of the same; also, for such necessary office 
expenses, record-books, stationery, printing, telegraphing, badges, 
clubs, furniture for rooms, and for the preservation, repair, and 
cleaning of the buildings and rooms used by the commissioners, for 
advertising, fuel, light and board of prisoners, it being the intention 
and meaning of this section that the necessary expenses incurred in 
the execution of criminal process for offenses charged by the board of 
metropolitan police commissioners, to have been committed in such 
city, and the maintenance of the police department hereby created 
within such city, shall be a charge to such city: Provided, That the 
total annual charge to such city for the maintenance of the board of 
metropolitan police commissioners, and police department, hereby 
created, shall not, exclusive of the erection and maintenance of sta- 
tion-houses, city prisons, and other permanent buildings, the furnish- 
ing of the same, the warming and lighting of the same by day and 
night, and providing the food for any person or persons detained in 
the same, or the rental of any building to be used for any of the said 
purposes, exceed the sum of one thousand dollars for each ten hun- 



§ 333 CITIES. 352 

dred inhabitants of such city, unless the board of aldermen and 
board of common council of such city as shall have two such boards, or 
the common council of such city where but one of such boards exist[s] ^ 
shall appropriate an additional sum upon the petition of the board of 
metropolitan police commissioners, and no permanent building shall 
be erected for use as a station-house, city prison, or other similar pur- 
poses, unless the board of aldermen and board of common council, of 
such city where two such boards exist, or the common council, where 
but one such board exists, shall appropriate the necessary funds 
therefor. Burns' Supp. 1897, § SlSOg. 

833, Duties of policeman — Marshal's office abolished. — 8. The 
members of the metropolitan police force shall have the exclusive 
power, and it shall be their duty, to serve all process within such city 
issuing from the mayor or city judge's court of such city, and all the 
duties now performed by the city marshal or his deputy in serving- 
writs, executing orders of said court, attending said court, conveying 
prisoners to and from the county jail or station-houses of such city, 
for arraignment on [or] trial before said court, or conveying prison- 
ers to the house of correction or w^ork-house, reform school or county 
jail, or other place of punishment and imprisonment, under the judg- 
ment, sentence, or order of process of said court, shall be performed 
by members of said metropolitan police force; and the office of city 
marshal of such city is hereby abolished; and the duties of such office 
shall hereafter be performed by the superintendent of the metropolitan 
police force of such city, or by the captains or sergeants of police, 
under his direction. It shall be the duty of the police force hereby 
created w^hen directed by the mayor of such city, to carry out all or- 
ders and resolutions of the board of aldermen and common council of 
such city as shall have two such boards, and of the common council of 
such city w^hen but one of such boards exists, which pertain to the 
enforcement of the ordinances of such city, and shall serve all notices, 
issuing from the office of the city clerk, and other city officers, and 
shall report, through the superintendent of police, all street obstruc- 
tions and dangerous excavations and other defects in the streets, and 
shall make all such other reports and carry out all such other orders, 
pertaining to the enforcement of the city ordinances as shall be directed 
by the board of aldermen, and common council of such city, when 
two such boards exist, and of the common council of such city when 
but one such board exists. 

Any failure to carry out any of the provisions of this section, shall 
be, as against any officer or member of the police force hereby created, 
good cause for removal. Burns' Supp. 1897, § 3730/i. 

334. Fees and rewards. — 9. No officer or member of such metro- 
politan police force shall receive, for any service rendered by him in 
discharge of any police duty, or as witness in any case before the 
mayor or city judge for any duty performed as bailiff of such court, 
any fee or compensation whatever, except the regular fixed per diem 
or yearly allowance made for his services as officer or member of such 



353 METROPOLITAN POLICE AND FIRE DEPARTMENT. § 335 

police force. Any rewards received by any officer or member of such 
police force shall be turned over to the secretary of said board of com- 
missioners, and by him paid into the city treasury every three months, 
for the support of the metropolitan police, as in this act provided. 
Burns' Supp. 1897, § 3730/. 

335. Interfering with board — Penalty. — 10. Any person or per- 
sons, or corporation, or common council, or other municipal, township, 
county or state officer or officers, who shall in any manner interfere 
with or interrupt the board of metropolitan police commissioners of 
such city in any act of theirs while in the legal discharge of their 
duties, as provided in this act, or of the police force herein authorized 
to be created, or shall prevent such board or force from discharging 
their duties, as defined in this act, shall, upon conviction before the 
mayor or city judge, or before the circuit or criminal court of said 
county, be fined not less than one hundred dollars or more than one 
thousand dollars to w^hich may be added imprisonment for not less 
than ten days nor more than ninety days for each separate offense. 
Burns' Supp. 1897, § 3730;. 

336. Merchant police — Special policemen. — 11. The commission- 
ers, whenever it shall seem to them discreet, may, on the application 
of any person or persons showing the necessity thereof, appoint and 
swear in any number of additional patrolmen to do duty at any place 
within said city, at the charge and expense of the person or persons 
by whom the application may be made, and the patrolman so ap- 
pointed shall perform duty only at the place designated by said com- 
missioners. They shall continue in office at the pleasure of said com- 
missioners for a term not exceeding one year, shall be subject to and 
obey the orders, rules and regulations of said commissioners, and con- 
form to the general discipline of the police force of such city, and to 
such special regulations as may be made by such commissioners for 
their government. And the person so appointed may be removed at 
any time by the commissioners. The commissioners may, upon emer- 
gency, with the written consent of the governor, and the mayor of 
said city, appoint such number of special patrolmen as they may deem 
advisable, but such special patrolmen shall serve for not exceeding 
seven consecutive days, unless their employment for a longer period 
shall be approved of by the board of police commissioners, and the 
mayor of such city. And the said special patrolmen shall be paid in 
the same manner as hereinbefore provided for the regular force. 
Burns' Supp. 1897, § 3730^-. 

337. Political work prohibited. — 12. It shall be unlawful for any 
patrolman, or other member of said force, while on duty, to solicit 
any person to vote at any general or special election, for any candi- 
date or candidates for office, or to challenge any voter, or in any man- 
ner attempt to influence any elector at any such election, or to be a 
delegate or candidate to any political convention. And any patrolman 
or other member of said force so offending shall be fined in any sum 

CiT. AND To.— 23 



§ 338 CITIES. 354 

not less than ten dollars, nor more than fifty dollars, and be dis- 
missed from the service. Burns' Supp. 1897, § 3730/. 

338. Bonds of officers. — 13. The superintendent, captain and 
other officers of said force shall each give bond in the penal sum of 
from one thousand dollars to three thousand dollars, to be determined 
by the commissioners, conditioned for the faithful discharge of their 
several duties. Burns' Supp. 1897, § 3730m. 

339. Fees, taxation and payments — 14. The fees fixed and al- 
lowed to city marshals shall be taxed and allowed in^ all cases where 
the arrests are made or process served b}^ any of the police force of 
said cities, in favor of said city, and shall be collected in the same 
manner as other costs are collected, and shall be paid into the city 
treasury of said city by the officers or party, or person collecting the 
same, every three months. Burns' Supp. 1897, § 3730?i. 

See ante, § 95. 

340. Repeal. — 15. That all laws and parts of laws in conflict 
with this act be and the same are hereby repealed. Burns' Supp. 
1897, § 3730o. 

ARTICLE 11-HUMANE INSPECTOR. 

SEC. SEC. 

341. Humane inspector — Appointment and 343. Duty of inspector. 

salary. 344. Pay. 

342. Petition of humane society — Appoint- 345. Powers. 

ment. 346. Affidavit — Prosecution of offenders. 

[Acts 1889, p. 135. In force March 5, 1889.] 

341. Humane inspector — Appointment and salary. — 1. That in 
all cities having a population of twenty-nine thousand inhabitants, 
according to the United States census of 1880, and having boards of 
police commissioners in charge and in control of the police depart- 
ments of said city, there shall be appointed by the said boards of 
police commissioners, as other officers of said police force are ap- 
pointed, an inspector, who shall be known as the humane inspector of 
said police force. Said inspector shall be appointed as other members 
of said force are appointed, at a salary of not less than the salary paid 
the sergeant of said police force, and said appointment shall be made 
b}^ the board of police commissioners as other appointments by them 
are made, in accordance wdth section 2 of this act. R. S. 1894, § 3731. 

342. Petition of humane society — Appointment. — 2. Whenever, 
in any city having the control of its police department under a metro- 
politan board of police commissioners, there shall be any regularly 
incorporated society or organization for the enforcement of the humane 
laws of the state, and whenever such society, through its authorized 
president and board of directors, shall, in writing, demand the 
appointment of such humane inspector, as provided for in the first 
section of this act, then it shall be the duty of said police commis- 



355 PARK COMMISSIONERS. § 343 

sioners, within thirty da3^s after the receipt of tlie petition of the presi- 
dent and directors of said humane society, to appoint, in accordance 
with their rules and in conformity with this act, said inspector. R. 
S. 1894, § 3732. 

34:3. Duty of inspector. — 3. It shall be the duty of said inspector, 
after his appointment, to attend exclusively to the detection and 
arrest of persons violating the humane statutes of the state, providing, 
however, he shall be under the control and discipline of said board of 
police commissioners and its officers, as other officers and patrolmen 
of said police department. R. S. 1894, § 3733. 

344. Pay. — 4. The pay of said humane inspector shall be pro- 
vided as the pay of other members of the metropolitan police de- 
partment is provided. R. S. 1894, § 3734. 

345. Powers.— 5. Said humane inspector shall have the same 
power, and be under the same restrictions, as other peace officers of 
the state. R. S. 1894, § 3735. 

346. Affidavit — Prosecution of offenders. — 6. Whenever any vio- 
lation of the humane statute, or any other statute, shall come to the 
knowledge of said inspector, he shall at once, under the direction of 
the president of the humane societ}', if said society be duly and regu- 
larly^ incorporated, file an affidavit before the nearest magistrate charg- 
ing the person so violating said statutes with said violation. R. S. 
1894, § 3736. 

ARTICLE 12.-PARK COMMISSIONERS. 

SEC. SEC. 

347. Park commissioners — Appointment 350. Taxes — Assessment — Application. 

— Term. 351. Duties — Compensation. 

348. Oath and bonds of officers. 352. Accomits — Reports. 

349. Donations — Acceptance. 853. Rules for government. 

[Acts 1891, p. 479. In force June 3, 1891.] 

847o Park commissioners— Appointment— Term. — 1. That the 
common council of any incorporated city of this state of a population 
of over ten thousand and under one hundred thousand inhabitants 
,shall be and is hereby authorized and empowered at its first regular 
meeting in June of any year after the passage of this act to select 
three park commissioners, who shall constitute and be designated a 
board of park commissioners, and who shall hold their office for one, 
two and three years respectively (as said commissioners shall deter- 
mine by lot at the time of their organization), and that annually there- 
after said common council shall elect one park commissioner, who 
shall hold his office for three years, or until his successor is elected 
and qualified. R. S. 1894, § 3737. 

See post, §1142, et seq. 

Parks— Dedication - Corporation trustee for pul)lic.— An irrevocable dedication of 
land is effected by designating certain lands on a map tiled in the county recorder's of- 
fice as a "park," and by selling lots with reference to the map. Ehodes v. Town of 
Brightwood, 145 Ind. 21; Bennett v. Seibert, 10 App. 309. 



§ 348 CITIES. 356 

A municipal corporation is not estopped to assert a dedication of land, by the unau- 
thorized taxation thereof to the original owner, after dedication. Ehodes v. Town of 
Brightwood, 145 Ind. 21. 

Where there has been laid out and filed a plat of land as an addition to a city, upon..^ 
which plat a portion of the land is designated as a "park," and there has been a sale oi / 
lots in reference to the plat, the dedication of the part thus affected is to the public, and ^ 
may be asserted by a town subsequently incorporated which annexes such addition to 
its corporate limits, for a change of trustees does not defeat the dedication. Ehodes v. 
Town of Brightwood, 145 Ind. 21. 

Where there is a dedication and an acceptance of a street with a park in the center 
and a roadway upon each side, the park becomes public ground for park purposes, un- 
der the control and qualified ownership of a city, and where an ordinance for the im- 
provement of the street recognizes the character of the ground, and orders the improve- 
ment accordingly, the city is liable for its proportion of the improvement bordering 
upon the park ground. Bennett, etc., v. Seibert, 10 App. 369. 

The principles governing the dedication of highways are equally applicable to parks 
and other public grounds. Bennett, etc., v. Seibert, 10 App. 369; Doe v. President, etc., 
7 Ind. 641 ; City of Logansport v. Dunn, 8 Ind. 378. 

348. Oatli and bonds of officers, — 2. Before entering upon the 
duties of their office, said park commissioners shall take an oath of 
office faithfully to perform the duties of the same. They shall meet 
within five days after their election and organize by electing a presi- 
dent, secretary and treasurer. The treasurer shall give bond, with at 
least two sufficient freehold sureties, in a sum not less than double the 
amount that may come into his hands in any one year by virtue of his 
office, to be fixed and approved by the finance committee of the com- 
mon council. The president and secretary shall each give bond with 
like sureties in a sum to be fixed by the finance committee, and all of 
said bond shall be approved by the common council of said city. R. 
S. 1894, § 3738. 

^eepost, § 1142. 

349. Donations — Acceptance. — 3. Such board of park commis- 
sioners shall be and is hereby authorized and empowered to accept 
and receive any bequests, donations or other gifts, of money or prop- 
erty made or given for the benefit of any public park under the super- 
vision or control of the board, and to invest or apply the same in the 
manner designated by the donor: Provided, That the board are of the 
opinion that such bequest, donation or gift would be beneficial to said 
park. R. S. 1894, § 3739. 

350. Taxes — Assessment— Application. — 4. The common council 
of any such city shall have power to annually assess and collect as other 
city taxes are assessed and collected, a special park tax to be fixed by 
the common council not exceeding five cents on each one hundred 
dollars of taxable property real and personal within the city, which 
special park tax shall be paid to the treasurer of said board upon the 
warrant of the president, countersigned by the secretary thereof; and 
such tax shall be applied exclusively to the maintenance and improve- 
ment of the public parks of the citv under the control and supervision 
of the board. R. S. 1894, § 3740." 



357 CITIES OF SEVENTY THOUSAND. § 351 

351. Duties— Compensation. — 5. The park commissioners shall 
have charge of all parks belonging to the city and open to the use of 
the general public, together with the approaches thereto. They shall 
employ competent help, have power to make and enforce police regu- 
lations within and about the parks, and shall have care, management 
and improvement of all said park property of the city and all personal 
property used therein or connected therewith. Such park commis- 
sioners shall receive for their Services such compensation as the com- 
mon council of the city may deem just, which compensation shall be 
paid from the special park fund. R. S. 1894, § 3741. 

352. Accounts — Reports. — 6. Such park board shall keep an ac- 
curate account of their receipts and expenditures of such revenues, 
and shall render to the common council annually, on the first Monday 
in January (and oftener if required by such common council), a re- 
port in writing of such receipts and expenditures and their doings as 
such board. And for any failure of any of said park commissioners 
to faithfully discharge his duty or properly account for or deliver over 
to his successor any of the money or property in his possession such 
park commissioner shall be liable on his bond. R. S. 1894, § 3742. 

353. Rules for goyernment. — 7. The common council may make 
any further regulation for the government of said board and the fur- 
therance of the purpose of this act not inconsistent therewith. R. S. 
1894, § 3743. 

ARTICLE 13.-CITIES OF SEVENTY THOUSAND. 

SEC. SEC. 

354. Assessor and treasurer — Offices abol- 367. Settlement with county auditor. 

ished. 368. Payments to school commissioners. 

355. County treasurer — Duties. 369. Monthly settlements with commission- 

356. City treasurer to make settlement. ers. 

357. City treasurer's settlement with city 370. Credit for school taxes. 

clerk — Procedure. 371. Collecting delinquent tax. 

358. Lioenseor special tax, how collected. 372. When settlement to be made. 

359. Sheriff to collect all a^essments. 373. Paying delinquent tax. 

360. Assessment and appraisement—Basis 374. Returns of delinquent lands. 

of levy. 375. Payment enforced by sale — Notice. 

361. Auditor of county to deliver aggre- 376. Payment of bids, how enforced — Guar- 

gate assessments. anty. 

362. Levy, how and by Avhom made — 377. Certificate of purchase— Title. 

Limit. 378. Compensation of auditor and treasurer. 

363. Tax levies, how certified. 379. Expense to county, how determined 

364. County treasurer to give notice. and paid. 

365. Delinquent taxes— Penalty. 380. Plats— City commissioners to approve. 

366. Sale of personal property. 381. Approval— Costs. 

[Acts 1885, p. 13. In force July 18, 1885.] 

354. Assessor and treasurer — Offices abolished. — 1. That on and 
after the expiration of the terms of the incumbents at the taking effect 
of this act, of the offices of city assessor and city treasurer in all cities 
containing a population of over seventy thousand, as shown by the 



§ 355 CITIES. 858 

last census of the United States, the said offices shall be abolished, 
and the records, books and papers thereof, except as otherwise herein 
provided, shall be turned over to and preserved by such other offices 
of said citv as the board of aldermen and common council of such city 
shall designate. R. S. 1894, § 3744. 

See Cities of One Hundred Thousand", post, § 382, et seq. 

IS^ote. — The statutes compiled under this article, except the last two sections thereof, 
concern taxation for city and school purposes, and applied only to the city of Indian- 
apolis. Their compilation should not be taken as indicating to what extent they are 
now in force. The laws for the government of cities of one hundred thousand, the 
school laws applicable in such cities and the general tax law should be considered in 
connection with said statutes. 

355. County treasurer — Duties. — 2. The treasurer of the county 
in which any such city is situated shall thereafter perform all the 
duties which, by law or the ordinances of such city, were required to 
be performed by the treasurer thereof, except as herein otherwise pro- 
vided, in the same manner and with like effect as such duties were 
required to be performed by such city treasurer. He shall imme- 
diately, upon succeeding to the discharge of such duties and before 
entering upon the same, take an oath to honestly discharge such duties, 
and execute a bond payable to the state of Indiana with at least four 
freehold sureties, to the approval of the board of aldermen and com- 
mon council of such city, in a penalty to be prescribed by them, not 
less than the estimated amount of all taxes, including delinquent, to 
be levied and collected for municipal purposes in such city for the 
current year, conditioned that he will honestty and faithfully dis- 
charge the duties of his office so far as they relate to or affect such 
city, and safely keep and properly account for and pay over to the 
proper person or authority all moneys and property of such city which 
may come into his hands, which bond shall be filed with and preserved 
by the city clerk. He shall, also, at the same time execute a separate 
bond, payable to the state of Indiana, with at least four freehold sureties, 
to the approval of the board of school commissioners of such city, in a 
penalty to be prescribed by such board, not less than the estimated 
amount of all taxes, including delinquent, to be levied and collected 
for school purposes in such city for the current year, conditioned that 
he will honestly and faithfully discharge the duties of his office, so 
far as they relate to or affect such school city, and safely keep and 
properly account for and pay over to the proper person or authority 
all moneys of such school city that may come into his hands, which 
bond shall be filed with and preserved by the secretary of such board 
of school commissioners. R. S. 1894, § 3745. 

Statute construed— Duties of county treasurer.— Under this act it is the duty of 
the county treasurer, acting as city treasurer, to make and furnish the monthly state- 
ment of all his receipts and disbursements on account of the city during the month, as 
required of city treasurers generally. Miller, etc., v. State, 106 Ind. 415. 

356. City treasurer to make settlement.— 3. The city treasurer of 



359 CITIES OF SEVENTY THOUSAND. § 357 

any such city in office at the taking effect of this act, upon the ex- 
piration of his term, sliali make settlement with the city clerk for all 
m.oneys collected and disbursed by him, and thereupon a statement 
shall be prepared, which shall be signed by him and attested by such 
clerk, in which shall be shown the amount of moneys in his hands 
belonging to the general fund and each other fund of which separate 
accounc is required to be kept by law or the ordinances of such city, 
and the total amount of all such funds. A particular description 
shall also be given of all bonds and other securities and property in 
the hands of said treasurer belonging to said city. Said treasurer 
shall present such statement to the county treasurer, and forthwith 
pay over to him all the funds of such city in his hands as shown 
therein, and also deliver to him all the bonds, securities and other 
property described in such statement, and said county treasurer shall 
give a receipt therefor, showing the amount of money received on ac- 
count of each fund, and the total amount received, and describing the 
bonds, securities and other property received, which receipts said city 
treasurer shall deliver to the city clerk, who shall issue a quietus 
therefor. At the time of making such settlement with the city clerk 
a like statement shall be prepared showing the amount of moneys in 
the hands of such city treasurer belonging to the school city, which 
statement said treasurer shall present to the treasurer of the board of 
school commissioners of such city, and pay over to him the amount of 
moneys in his hands shown by such statement, taking a receipt there- 
for, which he shall present to the secretary of the board, who shall 
give him a quietus. R. S. 1894, § 3746. 

357. City treasurer's settlement with city clerk — Procedure. — 4. 
Said city treasurer shall also, at the expiration of his term, make a 
settlement with the city clerk on account of the tax duplicate and de- 
linquent list which may then be in his hands for collection. He 
shall enter upon said duplicate and list opposite the name of each per- 
son from whom he has collected any taxes a statement of the fact 
showing the amount collected, and at the end of such duplicate and 
list the aggregate amount of all taxes of each kind collected by him 
shall be deducted from the aggregate amount of each kind of tax 
shown in said duplicate and said list, and the remainder of each kind 
of tax uncollected shall be stated, and the same shall be signed by said 
treasurer and attested by the clerk. Said tax duplicate and delinquent 
list shall then be delivered by said treasurer to the county treasurer, 
who shaix give him a receipt therefor, stating therein the amount of 
each kind of tax therein remaining uncollected and the aggregate of 
all such taxes, which receipt shall be filed with the city clerk. Said 
county treasurer shall thereupon proceed to collect the taxes contained 
in said duplicate and list in the same manner as he is required by law 
to collect taxes for state, county, township, road and other purposes 
upon the county tax duplicate and delinquent list, and shall make 
settlement on account thereof with the county auditor at the same 
time and in the same manner as he is required by law to make his 



§ 358 CITIES. 360 

settlements on account of the county tax duplicate. R. S. 1894, 
§3747. 

This and subsequent sections did not repeal R. S. 1894, § 3618, providing for a board 
of equalization in cities, fixing their powers and duties, and providing for the repay- 
ment of taxes erroneously assessed and collected, so as to affect the remedy given by 
said section. Leonard v. City of Indianapolis, 9 App. 262. 

358. License or special tax, how collected. — 5. Whenever by law, 
or the ordinance of any such city, a license or special tax, or sum of 
mone}^, other than taxes contained upon the tax duplicate, shall be re- 
quired to be paid by any person into the treasury of such city, such 
person shall obtain from the city clerk a statement showing the 
amount to be paid, and on what account, and present the same to the 
county treasurer, whose duty it shall be to receive and collect said 
amount, and give to the person paying the same a receipt showing the 
amount paid, and on what account, which receipt such person shall 
deliver to the city clerk, who shall thereupon issue to such person a 
license or quietus, as may be proper. R. S. 1894, § 3748. 

359. Sheriff to collect all assessments. — 6. The city treasurer of 
any such city, at the expiration of his term of office, as herein pro- 
vided, shall deliver to the sheriff of the county all precepts for the col- 
lection of street, sewer, drain and other assessments of like character, 
which may be in his hands unexecuted, and thereafter all such pre- 
cepts shall be directed and issued to such sheriff, who shall execute 
the same and make conve3^ances in execution of sales made by the city 
treasurer, the same in all respects as such precepts are required to be 
executed and conveyances made by such city treasurer, for which 
services such sheriff shall receive the same fees as are allowed by law 
to the city treasurer, to be paid in the same manner. R. S. 1894, 
§ 3749. 

360. Assessment and appraisement — Basis of levy. — 7. Begin- 
ning with the year 1886, and thereafter, the assessment and appraise- 
ment for taxation for state and county purposes of all real and per- 
sonal property and polls, subject to taxation within any city contain- 
ing a population of over seventy thousand, as shown by the last cen- 
sus of the United States, made pursuant to the provisions of the act 
of the general assembly of the state of Indiana, entitled ''An act con- 
cerning taxation," approved March 29, 1881, and of the acts amenda- 
tory thereof and supplemental thereto, as the same shall have been 
equalized b}^ the county and state boards of equalization, including all 
additions made thereto by said boards, or either of them, and all as- 
sessments and appraisements made by the auditor and treasurer of the 
county in which such city is situated, shall be the basis upon which 
the board of aldermen and common council and board of school com- 
missioners of any such city shall levy and assess the taxes for city, 
school and library purposes, which they respectively shall deem it 
necessary to levy, within the limitation hereinafter prescribed, and the 
taxes so levied shall become and continue liens upon the property upon 



861 CITIES OF SEVENTY THOUSAND. § 361 

which they are levied at the time, and in the manner, and to the ex- 
tent tliat taxes levied for state, county and other purposes become and 
continue liens upon such property by virtue of the provisions of the 
acts herein referred to. R. S. 1894, § 3750. 

361. Auditor of county to deliver aggregate assessments. — 8. It 
shall be the duty of the auditor of the county in which any such city 
is situated, to make out and deliver severally to the city clerk of said 
city and the secretary of the board of school commissioners thereof, 
in each year, beginning with the year 1886, a certificate, under the 
seal of the board of commissioners of such county, showing the aggre- 
gate assessment and valuation for taxation for state and county pur- 
poses, for the year in which such certificate is made, of all taxable 
real and personal and railroad property in such city, and the number 
of taxable polls therein, as the same shall have been returned by the 
assessor of the township in which such city is situated and as equal- 
ized by the county and state boards of equalization, which certificate 
shall be so made and delivered by said auditor immediately after the 
assessment and valuation of such property and polls has been com- 
pleted and returned to his office. R. S. 1894, § 3751. 

362. Levy, how and by wliom made — Limit. — 9. Such city clerk 
and secretary of the board of school commissioners shall lay such cer- 
tificate before the board of aldermen and common council and board 
of school commissioners of such city, respectively, at their regular 
sitting next held after such certificates are received, and thereupon 
such board of aldermen and common council and board of school 
commissioners, respectively, shall proceed, in the manner now pre- 
scribed by law, to levy such tax upon the amount of property and 
polls shown in such certificate as may be deemed necessary by them, 
respectively, to supply the needs of such city during the ensuing year 
for city, school and other purposes for which taxes may be properly 
levied: Provided, however, That it shall be unlawful for such board of 
aldermen and common council to levy a tax or taxes for any one year 
exceeding in the aggregate ninety cents upon the hundred dollars of 
the assessed and appraised value of the property subject to taxation 
in such city for the year in which the levy is made, as shown by the 
assessment returned to and on file in the office of the county auditor, 
and by his certificate herein mentioned. It shall also be unlawful for 
such board of school commissioners to levy a tax or taxes for any one 
year exceeding in the aggregate for all purposes for which they are 
authorized to levy taxes, twenty-two cents upon the hundred dollars 
of the assessed and appraised value of the property subject to taxation 
by them for the year in which the levy is made, as shown by the as- 
sessment returned to and on file in the office of the county auditor, 
and such auditor's certificate thereof as aforesaid; and so much of any 
law as requires the levy by the board of aldermen and common coun- 
cil of such city, of a tax to create a sinking fund, is hereby repealed 
so far as it applies to such city, and any moneys on hand belonging 
to such sinking fund may be appropriated by the board of aldermen 
and common council to general city purposes. R. S. 1894, § 3752. 



§ 363 CITIES. 362 

363. Tax leyies, liow certified. — 10. The levies of taxes made, as 
provided in the last section, shall be certified by the city clerk, under 
the seal of such city, and by the secretary of the board of school 
commissioners, respectively, without delay, to the county auditor, and 
such auditor shall thereupon proceed to estimate, as he is now re- 
quired to do in reference to state, county, township, road and other 
taxes, the amount of tax chargeable, according to the rate prescribed 
by such levies to each person who is listed for any taxable property 
or poll in such city upon the assessment and appraisement of prop- 
erty and polls therein made for the year in which such tax is levied 
and returned by the assessor of the township in which such city is sit- 
uated, and equalized by the county and state boards of equalization. 
He shall enter the amount of the tax, including delinquent tax charge- 
able to each such person, against the name of such person as it ap- 
pears upon the tax duplicate of the county for such city for the cur- 
rent year, in the columns in which are entered the current and delin- 
quent state, county, township, road and other taxes with which such 
person is charged. The aggregate of all taxes with which such per: 
son is chargeable, including state, county, township, road and other 
taxes, shall be carried out and set down opposite the name of such 
person in a column of totals. And in the recapitulation of the dupli- 
cate now required by law to be made by him, he shall set down the ag- 
gregate of all taxes contained in the duplicate for such city. Said 
duplicate shall thereupon be delivered to the treasurer of the county 
as now provided by law. R. S. 1894, § 3753. 

364. County treasurer to give notice. — 11. The county treasurer 
shall include in the notice, now required by law to be given by him 
of the receipt of the tax duplicate for collection, a statement of the 
amount of tax charged in such city for city and school purposes upon 
each one hundred dollars valuation of the taxable property, and also 
for such purposes upon each taxable poll, and such notice shall be the 
only notice required to be given of the fact of such taxes being in his 
hands for collection. R. S. 1894, § 3754. 

365. Delinquent taxes — Penalty. — 12. It shall be the duty of the 
county treasurer to receive and collect all taxes shown upon the 
duplicate of such city, for city and school purposes, the same as he is 
required by law to receive and collect the taxes shown thereon for 
state, county, township, road and other purposes. If one-half of the 
amount of such city and school taxes for the current year charged to 
any person, and the entire amount of delinquent school and city 
taxes, penalty, interest and costs charged to such person and unpaid, 
be paid on or before the third Monday of April, the payment of the 
other half of such taxes for the current year may be postponed to the 
first Monday of November following. But, if on or before the third 
Monday of April payment be not made of that portion of the above 
specified, the entire amount of unpaid city and school taxes, charged 
upon the duplicate to such person, shall become due and be returned 
delinquent, and collected as sach, with like penalty, interest and 



863 CITIES OF SEVENTY THOUSAND. § 366 

costs, as is provided where the first installment of state, county, town- 
ship and road taxes are not paid by the time prescribed. If such 
taxes remain delinquent after the first Monday of November follov;- 
ing, there shall be an additional penalty of six per centum added to all 
such taxes that become delinquent at the preceding April and No- 
vember settlements, but a penalty of ten per centum only shall be 
added to the current delinquency occurring on the first Monday of 
November. After payment by any person of taxes charged to him, 
the treasurer shall give to such person a receipt in the form prescribed 
by law, which shall include all taxes paid by him, the city and school, 
as well as other taxes. Any partial payment of either current or de- 
linquent taxes shall be prorated among the different taxes charged to 
the person paving in proportion to the amount of such taxes respect- 
ively. R. S/1894, § 3755. 

366. Sale of personal property. — 13. If either installment, or any 
part thereof, of such taxes for city and school purposes remains un- 
paid after expiration of the time limited for payment thereof, the 
county treasurer shall have the same power and be under a like duty 
to collect the entire amount of such taxes remaining unpaid by levy 
and sale of personal property, and by suit, as is granted to and im- 
posed upon him for the collection of delinquent state, county, town- 
ship, road and other taxes. R. S. 1894, § 3756. 

367, Settlement witli county auditor.— 14, The county treasurer 
shall, at the time of making his annual settlement with the county 
auditor, on the third Monday of April, as now required by law, make 
settlement w^ith said auditor for the amount with which said treasurer 
is to stand charged on account of city and school taxes, in the manner 
prescribed for his settlement for state, county, towmship, road and 
other taxes, and for all of such city and school taxes appearing upon 
the tax duplicate, and not showai upon such* settlement to be uncol- 
lected, said treasurer shall be held liable as having been collected and 
received by him. Immediately upon such settlement being made, the 
auditor shall make out statements in duplicate, showing in one the 
aggregate amounts separately of all current and delinquent taxes for 
city purposes, including with the delinquent taxes the penalties and 
interest thereon, which appear upon the tax duplicate for said 
city, the amount of each class of such taxes, penalty and interest that 
remains uncollected at the time of such settlement, and the amount 
of each class, including penalty and interest, that has been collected 
by such treasurer. In the other statement shall be shown, in the 
same manner, the aggregate amounts of current and delinquent taxes, 
including penalty and interest, for school purposes, that appear upon 
the duplicate for such city; the amount thereof that remains uncol- 
lected at the time of such settlement, and the amount thereof that has 
been collected by such treasurer. Said statements shall be signed 
and sworn to by said treasurer, and certified by the county auditor, 
under the seal of the board of commissioners, to be correct abstracts 
of the treasurer's settlement on account of such city and school taxes. 



§ 368 CITIES. 364 

One copy of the first mentioned statement shall be delivered by the 
county auditor to the city clerk of such city, who shall thereupon 
charge the amount shown thereby to have been collected to such 
county treasurer as cash in his hands. One copy of such other state- 
ment shall in like manner be delivered to the secretary of the board 
of school commissioners, who shall charge the county treasurer upon 
the books of the board with the amount sliowm to be collected as so 
much cash. R. S 1894, § 3757. 

368. Payments to school commissioners. — 15. The county treas- 
urer, immediately upon such settlement being made, shall pay over to 
the treasurer of the board of school commissioners of such city the 
full amount for which he is liable as shown b}^ such settlement on ac- 
count of school taxes, interest and penalty collected by him, for which 
he shall take a receipt from such treasurer, w^hich receipt he shall 
deliver to the secretary of said board of school commissioners, who 
shall give him a quietus therefor and credit him with the amount 
therefor, and charge such amount to the treasurer of the board. R. S. 
1894, § 3758. 

[Acts 1891, p. 38. In force Febmary 26, 1891.] 

869. Monthly settlements mth commissioners.^ — 2. That in all 
cities in the state of Indiana where boards of school commissioners 
have been elected and are managing the school affairs of said city un- 
der and by virtue of said act of the general assembly of the state of 
Indiana, approved March 3, 1871, and in Avhich the office of city 
treasurer has been or may hereafter be abolished under and by virtue 
of said act of the general assembly of the state of Indiana, approved 
February 21 , 1885, as mentioned and described in the first section of this 
act, it shall be the duty of the county treasurer on and after making 
his settlement with the county auditor on the third Monday of April, 
1891, and the payment to the board of school commissioners of the 
amount by such settlement found to be due to it, as required by sec- 
tion 13 of the last above named act, at the close of each calendar month 
to make report duly verified by his oath, to said board of school com- 
missioners of all taxes and delinquent taxes collected within said month, 
and thereafter, upon demand of the treasurer of said board of school 
commissioners to pay to him for the use of said board of school com- 
missioners the full amount of said taxes and delinquent taxes shown 
by said report to have been collected. Upon such payment being made^ 
the treasurer of the board of school commissioners shall execute to said 
county treasurer his receipt for the amount of money so paid, which 
receipt the latter shall deliver to the secretary of the board of school 
commissioners, w^ho shall give him a quietus therefor, and credit said 
county treasurer with the amount thereof and charge such amount to 
the treasurer of said board of school commissioners. R. S. 1894, 
§ 3759. 

870. Credit for school taxes. — 3. Said county treasurer shall 
thereafter in his settlement with the county auditor, made as required 



365 CITIES OF SEVENTY THOUSAND. § 



Oi 



by law, on the third Monday of April, and the first Monday of No- 
vember in each year, present such quietuses to the county auditor, 
who shall give such county treasurer credit therefor as against the 
sums with which he is chargeable upon account of the collection of 
such school taxes. R. S. 1894, § 3760. 

[Acts 1885, p. 13. In force July 18, 1885.] 

371. Collecting delinqiieiit tax. — 16. The county auditor shall in- 
clude in the delinquent list, recj[uired by law to be made by him after 
the annual settlement with the treasurer on the third Monday of 
April, the amount of all city and school taxes shown by such settle- 
ment to be uncollected, and carry the same out and include it in the 
total of all taxes due from the person liable therefor as shown in said 
list, and such list, when delivered to the county treasurer, shall em- 
power him, and it shall be his duty, to collect all delinquent city and 
school taxes embraced therein, in the same manner, and with the 
same penalty and interest, as the state, county, township, road and 
other taxes contained therein. R. S. 1894, § 3761. 

372. When settlement to be made. — 17. On the first Monday of 
November in each year the county treasurer shall make settlement 
with the county auditor for the amount of delinquent city and school 
taxes, penalty and interest shown upon said delinquent list in the 
same manner as he is now required by law to make such settlement 
for delinquent state, count}^ township, road and other taxes collected 
by him, and upon such settlement, statements signed, sworn and 
certified to by said treasurer and auditor, in the manner prescribed in 
section 14 of this act, shall be prepared in duplicate showing in one 
the aggregate amount of city delinquent taxes, penalty, and interest 
which had been contained in such delinquent list, the amount thereof 
collected, and the amount still remaining uncollected; and in the 
other, the same showings shall be made with the reference to the de- 
linquent school tax, interest and penalty, one copy of which statement 
shall be transmitted to the city clerk and secretary of the board of 
school commissioners, respectively, as required with reference to 
the statements mentioned in section 14. R. S. 1894, § 3762. 

373. Paying delinquent tax. — 18. The county treasurer shall im- 
mediately thereafter pay to the treasurer of the board of school com- 
missioners of such city the full amount of delinquent school taxes, in- 
terest and penalty, shown by such statement to have been collected, 
and shall take a receipt therefor, wbich he shall deliver to the secre- 
tary of the board of school commissioners, who shall give him a 
quietus therefor, and thereupon charge the treasurer of the board with 
the amount shown by such receipt to have been received bv him. R. 
S. 1894, § 3763. 

374. Returns of delinquent lands. — 19. The county auditor, in 
making out the list of lands and lots in such city returned and re- 
maining delinquent for state, county, township, road and otlier taxes 
which he is required by law to make between the first Monday in No- 



§ 375 CITIES. 366 

vember and the first day of January in each year, shall enter therein 
against the name of each person remaining delinquent on account of 
state, county, township, road and other taxes, the amount of all de- 
linquent taxes for city and school purposes, for which said lands and 
lots are liable, including taxes on poll and personalty and adding in- 
terest and a penalty of ten per centum thereon, and also the amount 
of all taxes for city and school purposes assessed for the current year, 
for which said lands and lots are liable, including taxes on poJ and 
personalty, which said taxes shall be carried out with the taxes for 
state, county, township, road and other purposes into one total. R. 
S. 1894, § 3764. 

375. Payment enforced by sale — Notice. — 20. Payment of such 
delinquent and current city and school taxes, with interest, penalty 
and costs, shall be enforced by sale of the lands and lots liable there- 
for, or so much thereof as may be necessary, which sale shall be made 
by the county treasurer in the same manner, at the same time and 
place, and upon the same notice as is prescribed by law for the sale of 
lands and lots for the payment of delinquent state, county, township, 
road and other taxes, the property to be offered for sale and sold 
for the payment of all the taxes of every kind for which the same is 
liable, with interest, penalty and costs thereon, as one entire sum, and 
not separately, for said city and school taxes. Nor shall notice of the 
sale be given separately for the city and school taxes, but it shall be 
stated in the notice required to be given of the sale of the lands and 
lots for state, county, township, road and other taxes, that the sale 
thereof will also be for the payment of the city and school taxes, which 
shall be the only notice required to be given. R. S. 1894, § 3765. 

376. Payment of bids, bow enforced — Guaranty. — 21. Payment of 
the bid, upon the sale of any such lands and lots, shall be enforced, 
so far as it relates to city and school taxes, by the same officer, and 
in the same manner, and with the same penalty and costs as is pro- 
vided by law for the enforcement of the pajmient of a bid made .upon 
the sale of lands and lots for state, county, township, road and other 
taxes alone. The guaranty required by law to be indorsed by the 
county treasurer upon each certificate given by him upon a purchase 
of lands and lots for state, county, township, road and other taxes 
shall, in every case where such sale is made for city and school taxes, 
dso apply to and embrace the amount of city and school taxes for 
which sale was made, and the holder of such certificate shall have 
the same remedy upon such guaranty, as to the city and school taxes 
embraced therein, that he has as to the state, county, township, road 
and other taxes to which the same relates. R. S. 1894, § 3766. 

377. Certificate of purchase — Title. — 22. All provisions of lav/ in 
reference to the certificate to be issued to a purchaser of lands and lots 
upon sale for state, county, township, road and other taxes, the effect 
of such sale and the rights of the purchaser, redemption therefrom, 
the making of deeds upon failure of redemption, and as to the force 
and effect of such deeds, for the quieting of titles acquired thereunder, 



367 CITIES OF SEVENTY THOUSAND. § 378 

for transferring to the purchaser the original lien for the taxes for 
which the sale was made and subsequent taxes paid, and for the en- 
forcement of such lien by judicial proceedings when the purchaser 
fails to acquire a valid title by virtue of the purchase, and as to the 
interest and penalties to be collected upon redemption from such sales 
before deed is made, or upon judicial proceedings to quiet the ^title or 
enforce the lien of the purchaser, and all other provisions of law relat- 
ing to the lev^dng, assessing, collecting and accounting for state, 
count}^ township, road and other taxes shall, so far as the same are 
applicable, apply with like force and effect in case of city and school 
taxes in cities of the class referred to in this act. R. S. 1894, § 3767. 

378. Compensation of auditor and treasurer. — 23. The county au- 
ditor, for all services required to be performed by him under this act, 
shall receive an annual salary of one thousand dollars, to be paid 
quarterly out of the funds of the city, upon allowance by the board of 
aldermen and common council thereof. The county treasurer, for all 
services required to be performed by him under this act, shall receive 
an annual salary of two thousand dollars, to be paid quarterly out of 
the funds of the city upon allowance by the board of aldermen and 
common council thereof. He shall receive no percentage for receiv- 
ing, collecting or disbursing any of the funds of such city, whether 
derived from taxes current or delinquent, or from special assessments, 
taxes, licenses or other sources. R. S. 1894, § 3768. 

379. Expense to county, liow determined and paid. — 24. The ex- 
pense to the county of the office of township assessor for the township 
in which any city of the class herein referred to is situated, including 
the salaries of the assessor and his deputies, and other legitimate 
expenses, shall be apportioned by the county auditor at the end of 
each fiscal year, beginning with the year 1886, between the county 
and such city, and such city shall pay to the county one-half of an 
amount bearing the same ratio to the total expense of such office as 
the total assessment and valuation of property subject to taxation in 
such city for the current year bears to the total assessment and valua- 
tion of property subject to taxation in the entire township in which 
such city is situated, for the current year, including such city and 
all other towns and cities therein, and all parts of the township not 
included in cities and towns. The auditor shall certify such appor- 
tionment to the board of aldermen and common council of such city, 
and the same shall thereupon be allowed by such board of aldermen 
and common council, and paid to the county out of the funds of such 
city in the hands of the county treasurer. Such city shall not be sub- 
ject to any other expense on account of said township assessor's office 
than such as is apportioned to it as herein provided. R. S. 1S94, 
§ 3769. 

[Acts 1889, p. 263. In force March 9, 1889.] 

380. Plats — City commissioners to approve. — 1. That hereafter, 
whenever any lands are platted for the purpose of being attached to 



§ 381 CITIES. 368 

any city as an addition thereto, or whenever any grounds therein, or 
within the bounds of any such city, shall be subdivided, a plat of 
such addition or subdivision shall be submitted to the city commis- 
sioners of such city before the same is placed on or filed for record, 
and such city commissioners may require that the streets and alleys 
of such addition or subdivision shall be made to correspond in width, 
and be co-terminous with the streets and alleys of that part of the city 
which it adjoins. R. S. 1894, § 3770. 

381. Approval — Costs, — 2. When any such plat is' submitted as 
provided in section 1 of this act, the city commissioners or a majority 
of them, after view of the ground shall, if they approve thereof, in- 
dorse upon such plat their approval and sign their names thereto: 
Provided, however, That the whole cost and expense occasioned by said 
platting shall be paid by the owner of said platted lands: Provided, 
That the provisions of this act shall apply only to cities having a pop- 
ulation of seventy thousand or more inhabitants. R. S. 1894, § 3771. 

See post, § 1040, et seq. 

See Towns, post, §1266, et seq., and notes. 



CHAPTER 2. 
CITIES OF MORE THAN ONE HUNDRED THOUSAND. 

AET. ART. 

1. InCOEPOEATIOX AND OFFICERS. 4, POLICE COURT. 

2. Legislative — Common council. 5c Cemeteries. 

3. Executive OFFICERS AND DEPARTMENTS. 

ARTICLE 1.— INCORPORATION AND OFFICERS. 

SEC. SEC. 

382. What cities governed by this act. 387. Oaths and bonds. 

383. Officers — Election — Contests. 388. Contracts with officers prohibited — 

384. Powers and duties of old officers. Penalty. 

385. Vacancies — Election. 389. Officers not to purchase claims. 

386. Officers to qualify. 

[Acts 1891, p. 137. In force March 6, 1891.] 

382, What cities goyernedby this act, — 1. That all cities of this 
state which had a population of more than one hundred thousand in- 
habitants, as shown by the last preceding United States census, shall 
hereafter be governed by the provisions of this act. Any city falling 
within the scope of this act shall be, and continue to be the same legal 
corporation as heretofore, subject to the same liabilities heretofore in- 
curred, and possessing the same rights which have heretofore accrued. 
All by-laws, ordinances and regulations, not inconsistent with this 
act, shall remain and continue in full force until altered or repealed 
by the common council and board of aldermen in conformity with the 
provisions of this act, but all by-laws, ordinances and regulations in- 
consistent with the act are hereby abolished. R. S. 1894, § 3772. 

Charter — Rules of constrnetion. — The charter or statute by which a municipal cor- 
poration is created or governed is its organic law, and the rules applicable to the inter- 
pretation of constitutions may be used in the construction thereof. Newcomb v. City of 
IndianapoHs, 141 Ind. 451. 

Rules of construction, see ante, § 45, general notes. 

Incorporation and org^anization. — For decisions relating to incorporation and or- 
ganization under the general law of 1867, see ante, § 46, notes. 

Org-anization of municipal corporation— Validity of tested by quo warranto.— See 
ante, § 46, notes. 

Incorporation— Presumption as to— Prescription— Judicial notice of.— See ante, 
§ 46, notes. 

Amendments — Repeal, etc.— The charter of a municipal corporation may be amend- 
ed or repealed at the pleasure of the legislature. Special charters may be amended by 
either general or special act. See ante, § 46, notes and cases. 
CiT. AND To.— 24 ( 369 ) 



§ 883 CITIES OF MOKE THAN ONE HUNDRED THOUSAND. 370 

Municipal powers— Soyereig-n— Legislative— Judicial— Xot liable for exercise or 
non-exercise of.— See ante, § 46, notes. 

Municipal corporation defined.— See ante, § 46, notes. 

General law. — A law which applies to cities having a population of one hundred 
thousand or more, when there is but one such city, but is so framed as to operate on all 
other cities in the state as they acquire the necessary population, is a general law within 
the meaning of the constitution, because it operates upon all cities alike, under the 
same circumstances. City of Indianapolis v. Navin, 151 Ind. 139; Pennsylvania Co. 
V. State, 142 Ind. 428. See Central Trust Co. of New York v. Citizens' Street E. Co., 82 
Fed. Eep. 1. 

When a statute provides that all cities or towns of a named population '' according to 
the United States census" or " according to the last preceding United States census," 
shall be governed by the provisions of the act, then all cities and towns, as they acquire 
the requisite population as shown by any census thereafter taken, will be governed by 
the act, the same as if they had the required population as shown by the last preceding 
census when the law was enacted. The case of Mode v. Beasley, 143 Ind, 306, explained 
and distinguished. City of Indianapolis v. Na^'in, 151 Ind. 139. 

S83. Officers — Election — -Contests. — 2. The elective officers of such 
city shall be a mayor, city clerk, police judge and councilmeii as here- 
inafter provided. There shall be held a city election in such city on. 
the second Tuesday of October of every alternate year, commencing 
with the year 1891, and next thereafter in the year 1893, and so on 
continuously for the choice of such mayor, clerk, judge and council- 
men. Such election shall be held in conformity to and in accordance 
with the general election laws of this state, and with the laws for the 
^making out of certificates and memoranda of the result, the delivery 
of the list of voters and the tally papers, the assemblage of inspectors 
or judges of elections as a board of canvassers, and the duties of such 
board in reference to state elections: Provided, That such board in 
city elections shall assemble in the room of the council of such city 
on the day following such election at 10 o'clock a. m. The duties of 
the county clerk in reference to such state elections shall be performed 
by the clerk of such city. All special elections in such city shall be 
governed by the same provisions. The laws of this state in reference 
to contests after state elections and all other matters shall be applicable 
to such city elections as far as they are adapted to the same. R. S. 
1894, § 3773. 

City officers— Legislature can not appoint.— See ante, § 59, note. 

Mature of office— Salaries— Allowances, etc— See ante, § 59, note. 

Officers— Duties— Liabilities.— See ante, § 59, note. 

Election of officers— Validity of— Quo warranto.— See ante, § 59, note. 

Officers— Jurisdiction of— Injunction -Mandamus .—See ante, § 59, note. 

Eenioval of officers.— See ante, § 59, note. 

Mayor— Under g-eneral law.— See ante, § 80, note. 

Councilman— And other officers, under general law, see ante, §§ 59-68, and notes. 

Municipal elections.— See ante, § 61, et seq., notes. 

A municipal corporation is bound by the declarations of its officers, where such 
declarations accompany, and are explanatory of, an act done by the officer in the scope 
of his authority. Los Angeles, etc., Co. v. City of Los Angeles, 88 Fed. Rep. 720; 1 
Dillon Munic. Corp. (4th ed.), §237, n., p. 321. 



371 . INCORPORATION AND OFFICERS. § 384 

381. Powers and duties of old officers. — 3. On the taking effect 
of this act, the present common council, mayor, city clerk and all 
other city officers and employes, shall possess the powers conferred by 
this act and no other. All offices of such city created by the statutes 
of the state or ordinances of the city in conflict with the provisions of 
this act are hereby abolished, but all officers elected by the common 
council and board of aldermen in joint convention held in November, 
1890, except members of the board of health, and now^ serving as 
such, and all officers now serving who have been elected by the peo- 
ple, except members of the board of aldermen, shall continue until 
the expiration of the respective terms for which they were elected, 
and at salaries now fixed for such officers respectively: Provided, how- 
ever, They shall not be removed from office except by impeachment, as 
provided herein: And ^provided, further, That upon the taking effect of 
this act the mayor shall assign such officers to appropriate departments, 
and they shall perform such duties and render such services as may 
be required of them by the respective departments. On the taking 
effect of this act the mayor may temporarily appoint a police judge, 
who shall serve until noon on the Thursday following the first gen- 
eral election, and shall possess all the powers of a police judge, as 
provided in this act. In case such city, prior to the passage of this 
act, shall have commenced, by its proper officers, any proceedings or 
undertakings of a public nature which was lawfully commenced or 
undertaken, the same shall not be interrupted by the passage of this 
act, but it shall be taken up and carried forward by the proper officer 
or department as prescribed by this act, except that in case of public 
improvements of any sort, whether of sewers, streets, alleys, levees, 
public buildings, or any other matter of an executive nature, in which 
a contract has not at the tim.e of the passage of this act been actually 
let and entered into, the executive department having charge of such 
matter shall not be bound, unless it so elects by the previous proceed- 
ings, but may review the whole subject and modify, change or re- 
scind all orders previously made in that behalf. The present officers 
of such city shall surrender the custody of all property, records, doc- 
uments of every nature whatsoever, to the appropriate officer or de- 
partment entitled to the possession of the same under this act. R. S. 
1894, § 3774. 

See notes to § 59, et seq., ante. 

385. Vacancies — Election. — 4. In the event of a vacancy occur- 
ring in any elective office of such city from death, resignation or other 
cause, except city clerk, police judge and councilmen at large, it shall 
be the official duty of the acting mayor to take notice thereof, and 
within ten (10) days from the time when such vacancy begins to ex- 
ist, to issue his proclamation for a special election to be held on a day 
therein named, not more than forty (40) days nor earlier than twenty- 
five (25) days from the date of such proclamation, in the city or ward, 
as the case may be, to fill the vacant office for the unexpired term. 



§ 386 CITIES OF MORE THAN ONE HUNDRED THOUSAND. 372 

[As amended, Acts 1893, p. 56. In force February 22, 1893.] R. S. 
1894, § 3775. 

386. Officers to qualify. — 5. The city clerk shall forthwith, after 
the execution of the certificate of election by the board of inspectors 
of elections of said office, as hereinbefore provided for, notify every 
person so elected of the time when he must qualify, either by personal 
service or leaving copy at his usual place of residence, and shall make 
return of such service and file the same in his office, R. S. 1894, 
§ 3776. 

387. Oaths aud bonds. — 6. Every elective officer of such city shall, 
before entering upon the duties of his office, take and subscribe an 
oath, to be indorsed on the back of his certificate of election, and every 
appointive officer shall likev/ise take such oath, to be indorsed upon 
the back of his certificate of appointment, before some officer author- 
ized to administer the same, to support the constitution of the United 
States and the constitution of the state of Indiana, and to faithfully 
and honestly discharge all his official duties, such oaths to be filed 
with the city clerk. Each of said officers, except the mayor and mem- 
bers of the common council, shall likewise execute a bond with surety, 
to be approved by the mayor, payable to such city in such penal sum 
as said council may enact by ordinance covering such cases, condi- 
tioned for the faithful performance of the duties of his office, and the 
payment of all moneys received by him as such officer to the proper 
person, such bond to be filed with the head of the department of 
finance. Any person who shall not file his oath, or oath and bond as 
the case may be, with the proper officer, within ten days after the be- 
ginning of the term for which he is elected or appointed, shall be 
deemed to have refused to serve, and shall forfeit to the city the sum 
of ten dollars ($10), recoverable in a civil action, and the office shall 
be deemed to be vacant: Provided, That in case of such default a 
member-elect of the council may, within thirty days from the date of his 
election, present his excuse therefor in wa-iting to the body to w^hich 
he is elected, and any other officer may, within the same time, present 
his excuse in writing to the council, and if such excuse is accepted, 
may be relieved from such penalty, and on taking such oath and giv- 
ing such bond may assume the duties of his office. R. S. 1894, 
§ 3777. 

See note, ante, § 113. 

388. Contracts with officers prohibited — Penalty. — 7. No mem- 
ber of the council, nor any other officer, clerk or deputy, or employe 
of such city shall, either directly or indirectly, be a party to, or in 
any manner interested in any contract or agreement, either with such 
city, for any matter, cause or thing, or by which any liability or in- 
debtedness is in anyway or manner created or passed upon, authorized 
or approved by said council, or either of them, or by any officer, board, 
clerk, deputy or employe of such city. Any contract in contravention 
of the foregoing provisions shall be absolutely void. Whoever shall 



373 LEGISLATIVE COMMON COUNCIL. § 389 

knowingi}^ Yiolate the provisions of this section shall be fined not 
more than one thousand dollars ($1,000), to which may be added im- 
prisonment for any period not exceeding one year. R. S. 1894, § 3778. 
See ante, § 122, post, § 1420, and notes. 

389. Officers not to purchase claims. — 8. No councilman, or other 
officer, clerk, deputy or employe of such city shall purchase, either 
directly or indirectly, any bond, order, claim or demand whatever 
against such city, during his continuance in office or employment for 
any less sum than the amount specified therein; and any bond, order, 
claim or demand so purchased by any such person, in contravention 
of the foregoing provision, shall be forfeited to such city, and no ac- 
tion shall ever be maintained thereon. Gifts and the acquirement of 
equitable interests shall be deemed to be within the meaning and scope 
of the provisions of this section. R. S. 1894, § 3779. 

ARTICLE 2.— LEGISLATIVE— COMMON COUNCIL. 

Duties of departments. 

Charges against officers — Trial. 

Trial of charges— Vote to remove. 

Taxes — Levy. 

Loans. 

Bonds — Issue and sale. 

Temporary loans. 

Refunding bonds. 

Warrants on treasurer — When pro- 
hibited. 

Interest on loans — Redemption. 

Failure to levy tax — Appropriations. 

Corporate boundaries — Annexation of 
lands. 

Appeal from annexation proceedings — 
Trial — Judgment. 

Parts of city or town not to be annexed 
—Debts. 

Disannexing territory. 

LEGISLATIVE. 

A. ORGANIZATION. 

390. Common coimdL — 9. The legislative authorit}^ of the city 
shall be vested in a common council. R. S. 1894, § 3780. 

For decisions and interpretation of statutes relating to the powers of the common 
council under the general law of 1867, see notes to ante, §§ 114-211. 

391. Wards. — 10. Such city shall be divided by the common 
council, b}^ ordinance, into fifteen wards, of as nearly equal popula- 
tion, and of as compact and contiguous territory as practicable. It is 



SEC. 




SEC. 


390. 


Common council. 


407. 


391. 


Wards. 


408. 


392. 


Election of councilmen. 


409. 


393. 


Qualification of councilmen — A^a- 


410. 




cancy — Filling of. 


411. 


394. 


Expulsion of councilmen. 


412. 


395. 


Meetings of council. 


413. 


396. 


Presiding officers. 


414. 


397. 


Meetings public. 


415. 


398. 


Clerk of council. 




399. 


Ordinances- Passage—Signing. 


416. 


400. 


"VATien ordinances may be passed. 


417. 


401. 


Penal ordinances — Publication. 


418. 


402. 


Approval of ordinances — Veto. 




403. 


Record of ordinances — Yeas and 
nays. 


419. 


404. 


Powers of common council. 


420. 


405. 


Penalties— Limit. 




406. 


Imprisonment for not paying fines. 


421. 



§ 392 CITIES OF MORE THAN ONE HUNDRED TPIOUSAND. 374 

made the duty of the present council of such city to readjust the ward, 
or common council boundaries in such city, and every sixth (6th) 
year after the year 1891 a new readjustment shall be made, but no 
oftener, unless the same is made necessary by the annexation of new 
territory, in which case the same may be done at any time by an ordi- 
nance passed by a two-thirds vote of the council. R. S. 1894, § 3781. 
Creation of wards— Judicial notice of existing- wards.— See ante, § 53. 

392, Election of councilmen. — 11. Each ward shall elect one 
councilman at the city election hereinbefore provided for, and the 
whole city shall elect six councilmen at large, whose terms of office 
shall commence at 12 o'clock, noon, on the Thursday following such 
election, and shall continue until the same hour of the same day, 
week and month of the second year thereafter: Provided, That all of- 
ficers chosen at the first general election after the taking effect of this 
act shall commence their official terms at the expiration of the terms 
of their respective predecessors as hereinbefore provided. R. S. 1894, 
§ 3782. 

393. Qualification of councilmen — Yacancy — Filling of. — 12. No 
person shall hold the office of councilman from any ward, unless he 
is at the time of his election a resident and voter thereof; a removal 
of residence from such ward shall vacate his office. No person shall 
hold the office of councilman at large unless he is a resident and voter 
of such city. In the event of a vacancy in the office of councilman at 
large, from death, resignation or other cause, the common council 
shall within thirty (30) days from the time when such vacancy begins 
to exist, fill the vacant office for the unexpired term. The election 
therefor shall be held at a special meeting of the common council on 
the call of the mayor. Ten (10) days' notice of such meeting shall 
be given by the city clerk to the members of said common council, 
and also by one publication in a daily newspaper of general circula- 
tion published in such city, five (5) days prior to such meeting. The 
person receiving a majority of the votes cast at such meeting shall be 
declared elected such councilman at large. [As amended Acts 1893, 
p. 56. In force February 22, 1893.] R. S.^1894, § 3783. 

394r, Expulsion of councilmen. — 13. The council shall have the 
power to expel any of its own members for violation of official duty 
and to declare the seat of any member vacant, by reason of his dis- 
ability to perform the duties of his office. The council may adopt its 
own rules to govern such cases, but a two-thirds vote shall be required 
to expel a member or vacate his seat under this section. R. S. 1894, 
§ 3784. 
See note, ante, § 119. 

395, Meetings of council, — 14. The members elect of the council 
shall hold their first regular meeting on the first Thursday after the 
day of their election at 7:30 p. m , in the council chamber. The coun- 
cil shall thereafter meet not less than once a month, and as much of- 



375 LEGISLATIVE COMMON COUNCIL. § 396 

tener as their rules may require. Special meetings may be held on 
the call of the mayor, or on such other call as may be provided for by 
rules. Eleven members shall constitute a quorum. It shall require 
a majority vote of all the members elect to pass an ordinance. Wher- 
ever it is provided in this act that an ordinance shall be passed by a 
two-thirds vote, the same shall be construed to mean two- thirds of all 
the members elect: Provided, That the first meeting of the members of 
the first council elect after the taking effect of this act shall be held 
on the first Thursday in January, 1892, at 7:30 p. m. R. S. 1894, 
§ 3785. 

See note, ante, § 114. 

396. Presiding officers.— 15. The council shall at its first meet- 
ing provided for in the last section choose from its number a presid- 
ing officer, and also a presiding officer pro tera., who shall serve until 
noon of the first Thursday after the second Tuesday of October in the 
second succeeding year. R. S. 1894, § 3786. 

397. Meetings public. — 16. All meetings of the council shall be 
public. R. S. 1894, § 3787. 

898. Clerk of council. — 17. The city clerk shall be the clerk of the 
common council. It shall be his duty to keep the files and papers 
thereof, to make and keep an accurate minute and journal of the pro- 
ceedings, enter the ayes and noes on the passage of every ordinance 
and resolution in full, and on all other votes whenever requested to do 
so by two members. R. S. 1894, § 3788. 

See post, § 428. 

Duties of clerk under general law of 1867, see ante, §§86, 87 and notes. 

399, Ordinances — Passage — Signing, — 18. All ordinances, orders, 
resolutions and motions for the government or regulation of such city, 
and all ordinances for the appropriation of money, shall originate in 
the common council. No appropriation shall be made for the pay- 
ment of money, otherwise than by ordinance, specifying by items the 
amount thereof and the department for which such appropriation shall 
be made. The council may prescribe its .own rules. No ordinance, 
order or resolution shall become law, or operative, until it has been 
passed, enrolled and attested by the clerk, and signed by the presid- 
ing officer thereof, and approved in writing by the mayor, or passed 
over his veto, as provided in the next section, and whenever the same 
may be necessary, promulgated according to law. R. S. 1894, § 3789. 

See notes, ante, §§ 117, 117«, 118, 124 and notes. 

400, When ordinances may be passed,— 19. No ordinance shall be 
passed on the same day, or the same meeting, that it is introduced ex- 
cept by unanimous consent. R. S. 1894, § 3790. 

401, Penal ordinances — Publication. — 20. Every ordinance im- 
posing a penalty or forfeiture for tlie violation thereof, shall, before 
the same shall take effect, be published once each week for two weeks 



§ 402 CITIES OF MORE THAN ONE HUNDRED THOUSAND. 376 

consecutivel}^ in some newspaper printed in tlie city: Provided, That 
in case of insurrection, riot, pestilence, conflagration or other public 
necessity requiring immediate operation of such ordinance, it shall 
take effect as soon as proclamation is made thereof by the mayor, and 
posted in five public places in each of the wards of such city: Pro- 
vided, further, The common council shall have discretionary power to 
direct the publication of any ordinance in a daily newspaper, and the 
publication thereof for one day each in any two consecutive weeks in 
any daily paper shall be deemed sufficient to allow the same to take 
effect: Provided, That when no paper is published in such city, 
printed or written copies of such ordinance shall be posted up by the 
city clerk in at least five public places in each ward of such city for 
two weeks before the taking effect thereof: Provided, further, That 
whenever any city shall publish any of its ordinances in book or 
pamphlet form, such publication shall be of itself sufficient publica- 
tion, and such ordinance or ordinances shall take effect two weeks 
from the date of publication appearing upon the said book or pamph- 
let. Any such publication in book or pamphlet form, if the same 
shall purport to be printed under the authority of the common coun- 
cil of such city, shall be presumptive evidence in all courts and 
places, of the ordinances therein contained and of the date of adop- 
tion, and that the same are properly signed, attested and recorded, 
and approved by the mayor. R. S. 1894, § 3791. 
See notes, ante, §§ 82, 84, 117, 117a, 118, 124. 

402. Approval of ordinances — Teto. — 21. Every ordinance, order 
or resolution of the common council shall, immediately upon its en- 
rollment, attestation and signature by the clerk and presiding officer 
thereof, be presented by the city clerk to the mayor, and a record of the 
time of such presentment kept by the clerk. If the mayor approves it 
he shall sign it, and it shall become a law. If he does not approve it 
he shall return it to the clerk, with his objections in writing, within 
ten days after receiving it, and the clerk shall present the same to the 
common council at its next meeting. It shall be the mayor's official 
duty to express, in writing, his approval or disapproval, as hereinbe- 
fore provided. If for any reason the mayor fails to discharge his duty 
within the time named, by approving or disapproving the same, in 
writing, the same shall be deemed equivalent to a disapproval, and in 
all cases of disapproval by the mayor the same shall not become a law 
unless the body in which the measure originated, within thirty days 
after the time named for the mayor's action, again pass the same by 
a two-thirds vote. R. S. 1894, § 3792. 

403. Record of ordinances — Yeas and nays. — 22. Ail ordinances 
shall, within a reasonable time after their approval by the mayor, or 
their passage over his veto, be recorded in a book kept for that pur- 
pose by the city clerk. Such record shall include the signature of the 
presiding officer, attestation of clerk, and the mayor's written approval 
or disapproval, and memorandum of its passage over his veto. Such 



377 LEGISLATIVE COMMON COUNCIL. § 404 

record or certified copy thereof shall be presumptive evidence of the 
going into effect of such ordinance. On the passage of any ordinance 
or resolution by the council, the yeas and nays shall be taken and en- 
tered in full on the journal. R. S. 1894, § 3793. 
See notes, ante, §§ 117, 117a, 118, 124. 

B. POWERS AND DUTIES. 

J:0:t. Powers of common council. — 23. The common council shall 
have power to enact ordinances for the following purposes: To pro- 
vide a corporate seal, with appropriate device, for such city, to be af- 
fixed to all instruments or writings needing authentication. To fix 
the salaries or compensation of the various ofl&cers and employes of 
such city, except w^iere a different' provision is made in this act, upon 
this subject: Provided, That no member of the common council shall 
be allowed more than two hundred dollars for each year of his service 
as such member, nor shall any salary be changed after the election or 
appointment of a person to office, until his term expires or his ofiice is 
vacated. To protect all city property, real and personal. To provide 
for the punishment of contempt and disorder in the rooms of the 
council and of the police court. To authorize a census of the city. 
To receive gifts, donations, bequests and public trusts, and to agree to 
conditions and terms accompanying the same and bind the corpora- 
tion to carry them out. 

Public Comfort and Health. 

To declare what shall constitute a nuisance, to prevent the same, 
require its abatement, authorize the removal of the same by the proper 
officers, and provided for the punishment of the person or persons 
causing, continuing or suffering the same to exist, and to assess the 
expenses of its removal against such person or persons, and to provide 
for collecting such expenses either by placing the same on tax dupli- 
cate or by suit. To regulate or prohibit the use of hand-organs or in- 
struments of any annoying character, or other music of itinerant per- 
formers, in the streets, alleys or public places of such city. To auth- 
orize the cleansing and purification of water and water-courses by the 
board of public works, to prevent encroachment or injury to the banks 
thereof, or the casting into the same of offal, dead animals, logs, 
rubbish, dirt or impure liquids of any kind whatever. For the 
purposes of this paragraph, jurisdiction is hereby conferred upon said 
city for ten miles from the corporate limits thereof. To regulate the 
location and management of starch factories, glue factories, renderies, 
tallow candleries, bone factories, soap factories, tanneries, slaughter- 
houses, breweries, distilleries, livery stables, foundries, and of all other 
establishments of which the business or trade may become noxious or 
injurious to public comfort or health; to prohibit the erection of such 
buildings or the continuance of such noxious or injurious occupations 



§ 404 CITIES OF MORE THAN ONE HUNDRED THOUSAND. 378 

therein whenever the public comfort or health requires it. For the 
purposes of this paragraph, such city is hereby given jurisdiction for 
four miles from the corporate limits thereof. To prevent or regulate 
the use of fire-arms, fire-works, bonfires or other things or practices 
tending to endanger persons or property. To regulate and prohibit 
the running at large of cattle, horses, swine, fowls, sheep, goats, dogs 
or other animals; to authorize the impounding, keeping, sale and re- 
demption of such animals, when found in violation of the ordinances 
in such cases provided. To prevent the deposit of any unwholesome 
substance, either on private or public property, compel its removal to 
designated points, and to require slops, garbage, ashes, and other 
waste or unwholesome material to be removed to designated points, or 
to require the occupants of premises to place them conveniently for 
removal. For the purpose of this paragraph, jurisdiction is given 
such city four miles from the corporate limits. To compel the occu- 
pants of any premises, buildings or out-houses situated in said city, 
or within four miles of the corporate limits thereof, when the same 
has become filthy or unwholesome, to abate or cleanse the same, and to 
authorize the same to be done by the proper public officers, and to as- 
sess the expense thereof against such property. To regulate or pre- 
vent the storage of gunpowder, tar, pitch, resin, coal oil, benzine, 
turpentine, hemp, cotton, nitro-glycerine, dynamite, giant powder, 
petroleum, gasoline or gas, or any product thereof, or any other ex- 
plosive or combustible material, or any material which may seem dan- 
gerous. To regulate the location and management of cemeteries or 
burial places within or without such city, and to protect the same and 
to provide for the sanctity of the dead; to regulate or prohibit the in- 
terment of bodies; to authorize the removal of bodies now or hereafter 
buried, or of cemeteries to some other proper place. For these pur- 
poses such city shall have jurisdiction for four miles from the city 
limits. To establish quarantine regulations. To authorize the re- 
moval or confinement of persons having infectious or pestilential dis- 
eases. For the purposes of this paragraph and the preceding para- 
graph, jurisdiction is given such city for four miles from its corporate 
limits. To regulate or prohibit the ringing of bells, crying of goods, 
or sounding of steam whistles. To direct the location and regulate 
the management of all public markets and market places, whether es- 
tablished by the city or by private individuals; to prevent the offenses 
of regrating and forestalling. To regulate and require reports and 
records of births and deaths, and to make such requirements as may 
be deemed necessary to prevent the spread of contagious or infectious 
diseases. To authorize and require the inspection and condemnation, 
if unwholesome, and to regulate the sale, of meats, poultry, fish, but- 
ter, oleomargerine, cheese, lard, vegetables, and all other food or pro- 
visions. To regulate the selling, weighing, measuring of hay, wood, 
coal, coke, and all other articles sold by weight or measure, and to re- 
quire dealers to keep honest weights and measures, and to provide for 
their inspection and sealing. To authorize and require the inspection 



379 LEGISLATIVE COMMON COUNCIL. § 404 

and "licensing of steam boilers and elevators, and to prohibit their use 
when unsafe or dangerous, or without license. To define fire limits 
in such city, and the character of buildings which are forbidden to be 
erected within such limits, and to prohibit the erection of buildings in 
such city without a license first obtained therefor, and to regulate the 
construction of buildings to prevent the spread of fire. To authorize 
and require the inspection of buildings and structures erected, or to 
be erected, or in process of erection. To authorize the license there- 
for to be revoked, and the condemnation thereof in whole or in part, 
when dangerous or insecure in the opinion of the department of pub- 
lic works, and to authorize the same to be taken down within a speci- 
fied time by the owner thereof, or in default thereof to authorize the 
same to be taken down at the said owner's expense; or in case of an 
emergency, to authorize the same to be taken down by the department 
of public works, without delaying for the owner to do so. To com- 
pel persons about to undertake dangerous improvements to execute 
bond of sufficient sureties, conditioned that the owner or contractor 
will pay all damages which may be sustained by any person or prop- 
erty from such work. To make all regulations which may be deemed 
expedient for the promotion of health or suppression of disease. To 
regulate the construction of chimneys, smoke-stacks, hearths, ovens; 
the erection of stoves and stove-pipes, boilers and apparatus, used in 
buildings or other places, and cause the same to be removed or made 
secure when considered dangerous; to compel owners and occupants 
of houses and buildings to make scuttles in the roof thereof, with 
stairs or ladders leading to the same, and to compel the erection of fire 
escapes. To authorize and require the inspection of gas pipes, water 
pipes, plumbing, drainage, sewage and electric lines or wires on pri- 
vate property or elsewhere; to compel them to be repaired or made 
secure by the owner or occupant, and on failure of such owner or 
occupant to do so, to authorize or require the gas or electric current to 
be shut off from the same until such repairs are made. To regulate 
and prohibit the keeping of any lumber yard, and the placing or pil- 
ing of any lumber, wood or other combustible material within the fire 
limits. 

Streets, 

To prevent immoderate or careless driving or riding. To regulate 
the use of streets and alleys by vehicles, and designate the kind of 
conveyances and vehicles which may not use designated streets, which 
have been improved, together with hours for the use of such streets by 
certain specified classes of vehicles. To prevent the incumbering of 
streets, alleys, squares, sidewalks and crossings with vehicles, horses, 
or any substance or material interfering with the free use of the same. 
To regulate the speed of horses, wheeled vehicles, cars and locomo- 
tives. To regulate and protect all bridges, culverts, tunnels, viaducts, 
aqueducts, sewers, canals and hydrants wholly or partly in said city, 
and to prohibit digging in such streets, alleys or public places, or in 



§ 404 CITIES OF MORE THAN ONE HUNDRED THOUSAND. 380 

any way injuring, disturbing or making holes in the surface thereof. 
To regulate the use of sidewalks and all structures in, under or over 
the same, and to require the owner or occupant of premises to keep 
the sidewalks in front of the same free from snow and other obstruc- 
tions, and prescribe hours for cleaning the same. To regulate and 
prevent the throwing or depositing of sweepings, dust, ashes, offal, 
dirt, garbage, paper, hand-bills, dirty liquids or any other material 
into any street, alley or public place. To regulate and prevent the 
use of streets, sidewalks and public places for signs, sign posts, awn- 
ings, awning posts, poles, horse troughs, steps, railings, entrances, 
racks, posting hand-bills and advertisements, and display of goods, 
wares and merchandise. To regulate and prohibit the exhibition or 
carrying of banners, placards, advertisements, or hand-bills on the 
streets, alleys, or public places. To regulate and prevent the flying of 
flags, banners, or signs across the streets or from houses. To regulate 
the numbering of houses and lots, and compel owners to renumber the 
same, or in default thereof to authorize and require the same to be 
done by the department of public works at the owner's expense, such 
expense to constitute a lien upon the property, and enforceable as pro- 
vided in the ordinance. To regulate or change the name of streets 
and parks. To regulate the making of private connection with sewer, 
gas and water pipes, and to compel owners of property to bring such 
connections inside of the curb of streets before permanent improve- 
ment thereof, and in default of the owners making such connections, 
to authorize the city to do so at the owner's expense. And to make 
such expense a lien on the property and collectible in the same man- 
ner that expenses for sprinkling streets are collectible. 

Occupations. 

To regulate and license the use of coaches, hacks, drays and all other 
vehicles for the transportation of passengers, freight or other articles 
to or from points within said city, for hire or pay. To regulate, license, 
tax, restrain or prohibit theatrical and all other exhibitions, shows or 
entertainments for which money is demanded or received: Provided, 
That lectures on scientific, historic, benevolent, artistic, religious or 
literary subjects, and apparatus for the elucidation of the same, and 
specimens of fine art, shall not be deemed to be within this provision. 
To license, tax, regulate or prohibit runners at railroad stations and 
other places for stages, cars, public houses or other things or persons. 
To regulate the sale of all kinds of property at auction in the streets, 
stores, shops or elsewhere in the city, and to license auctioneers. To 
license, tax, regulate and prohibit the supply, distribution and con- 
sumption of artificial and natural gas, of water and of electricity, and 
to fix the prices thereof. To license, tax, regulate, suppress and pro- 
hibit hawkers and itinerant dealers, peddlers and pawnbrokers, and to 
revoke such license at pleasure. To license, tax and regulate public 
.hackmen, draymen, omnibus drivers, carters, cabmen, porters, ex- 



381 LEGISLATIVE COMMON COUNCIL. § 404 

pressmen, bill-posters and all other persons pursuing like occupations, 
and to prescribe their compensation. To license, tax, regulate or pro- 
hibit all inns, taverns, hotels, restaurants or other places used or kept 
for public entertainment. To license, tax and regulate the selling or 
giving away of any spirituous, vinous or malt liquors; and to tax, 
license and regulate places where such liquors, or either of them, are 
manufactured or stored, or where such liquors, or either of them, are 
to be used on the premises where given away, sold, stored or manufac- 
tured; but such license shall not exceed the amount provided by the 
laws of this state for other cities thereof. For the purposes of this sec- 
tion, jurisdiction is given such city for four miles from its corporate 
limits. To tax, license and regulate distilleries and breweries, and the 
depots or agencies established in said city of all breweries and distil- 
leries. To regulate and license lumber yards, livery stables and public 
scales. To tax, license and regulate second-hand and junk stores, and 
to forbid their purchasing or receiving from minors any article what- 
ever, without the consent of their parents or guardians. To license, 
tax, regulate and prohibit the keeping or harboring of dogs. To license, 
tax, regulate and prohibit dairies and the keeping of milch cows. To 
license, tax and regulate wheeled vehicles, provided that the funds 
derived therefrom shall be applied only to the maintenance and repair 
of streets and alleys. To license, tax and regulate branch stores or 
establishments, and all other concerns established in said city for tem- 
porary business only. 

Morals. 

To preserve peace and good order, prevent vice and immorality, 
quiet riots and dispel disorderly assemblages. To suppress gaming 
and gaming-houses and places and houses of ill fame or assignation, 
or houses kept for any immoral purposes; to prohibit and destroy any 
instruments and devices of gaming, and to restrain fraudulent prac- 
tices. To license, tax, regulate, restrain or prohibit all tables, alleys, 
machines, devices or places of any kind for sports or games. To reg- 
ulate the time and place of bathing in the rivers or public waters of 
such cit}^; to direct the location and management of public bath- 
houses, to license the same or to require the same to be closed, if 
deemed expedient. To restrain and punish vagrants, mendicants, 
street beggars, common prostitutes and their associates, thieves and 
criminals, or persons known or reputed to be such. For the purposes 
of the last five paragraphs, such city is given jurisdiction for four 
miles from the limits thereof. To prohibit cruelty to animals. 

Drainage. 

To keep open rivers, streams or water ways, prevent the waters 
thereof from pollution; jurisdiction for these purposes being given 
such city for ten miles from its corporate limits. To provide for 



§ 404 CITIES OF MORE THAN ONE HUNDRED THOUSAND. 382 

change in the course of streams, rivers or water ways, passing tlirough 
or bordering upon the corporate limits thereof, and to authorize the 
exercise of the power of eminent domain, either within or without 
such city, for the purpose of securing a new course for such stream, 
river or water way. To provide on what terms real estate in such 
city may be drained by means of surface or under-drains, over and 
across other real estate therein, or within four miles thereof. 

Railroads. 

To secure the safety of citizens and others, in the running of trains, 
in or through such city; to require persons or corporations, owning or 
operating railroads, to fence their respective railroads, to construct 
cattle-guards, street crossings, and viaducts, and public roads, and to 
keep the same in repair and safe condition for persons on foot, in ve- 
hicles, or otherwise; to keep flagmen at railroad crossings, and pro- 
vide protection against injury to persons or property from the opera- 
tion of said railroads. To authorize and require railroad companies to 
change the location, grade and crossings of their respective railroads; 
to compel them to raise or lower their railroad tracks to conform to 
any grade which may be established by such ordinance; to compel 
persons or companies owning or operating railroads to construct 
bridges, viaducts or tunnels, and approaches thereto, across their re- 
spective railroads or rights of way, at street or alley crossings; to com- 
pel railroad companies to make and keep open and in repair ditches, 
drains, sewers and culverts, along and under their respective tracks. 
To require railroad corporations, or persons owning or operating rail- 
roads to keep gutters and street crossings clean along their right of 
way. To prohibit the laying of any railroad track across any street 
or alley or public place, without permission first obtained therefor 
from the department of public works, and to provide for the taking up 
and removing any track so laid, without notice, and charge the ex- 
pense thereof against the offending person or corporation. To require 
any person or company, owning or operating any railroad, to take up 
and change the location of any railroad track or switch heretofore or 
hereafter laid within the limits of said city. 

Public Enterprises. 

To regulate and protect, except as otherwise herein provided, fire 
engines, hose, hook and ladders and all other property or apparatus 
belonging to or used by the police or fire department; and to prevent 
interference with the members of the police or fire departments while 
on duty. To authorize the closing of any street, alley or public place, 
or part thereof, whenever the public safety may require. To authorize 
the alienation and conveyance of any property, real or personal, be- 
longing to such city: Provided, That no such property shall be sold 



883 LEGISLATIVE COMMON COUNCIL. § 404 

until the same has been appraised by three disinterested freeholders 
of such city, appointed by the judge of the circuit court, in the county 
where such city is located, neither of said appraisers to be officers or 
employes of such city, and their sworn valuation in writing returned 
to the mayor. No sale or conveyance shall be made for a less sum 
than such appraisement, and in the case of real estate, only by a two- 
thirds vote of the common council. To regulate pounds, market 
houses, market places, houses of refuge, pest houses, hospitals, dis- 
pensaries, engine houses and all other public city institutions. 

Miscellaneous. 

To regulate the building of party walls and partition fences, pre- 
scribe in what proportion adjoining owners shall bear the expense of 
the same, in what manner such expense shall be levied and collected 
and to define the terms upon which partition walls already established 
may be used by adjoining owners. To carry out the objects of the 
corporation, not hereinbefore particularly specified: Provided, That 
such ordinances are not inconsistent with the laws of the state. Where 
jurisdiction is given by this act to such city beyond its corporate 
limits, the same shall not extend to any point within the corporate 
limits of any other municipal corporation, except in matters relating 
to public health and pollution of water-courses. R. S. 1894, § 3794. 

Powers of common council.— See ante, § 124, notes. 

Municipal powers— Mode of exercise— Municipal contracts— Municipal property, 

etc. — Se>e ante, § 124, notes. 

Legislative and ministerial powers— Police power.— See ante, § 124, note. 

Actions— Statute of limitations, etc.— See ante, § 124, note. 

Ordinances— Enactment, amendment, repeal, validity, invalidity and construc- 
tion of, etc.— See ante, §§ 117, 117a, 118, 124, notes. 

Resolution and rules of council.— See ante, §§ 116-124, notes. 

Special subjects— Powers of council to leg'islate concerning^,— For special subjects 
under the general law over which council has power to legislate, and the decisions of 
the courts relating thereto, see ante, § 124, notes. 

Nuisance.— Where a common council is empowered to declare what shall constitute 
a nuisance, and to require its abatement and to assess the expenses of its removal 
against the person causing the same or suffering it to exist, the council can not declare 
that to be a nuisance which in fact is not. City of Evansville v. Miller, 146 Ind. 613; 
Bank v. Sarlls, 129 Ind. 201 ; Baumgartner v. Hasty, 100 Ind. 575. 

Nuisance — Power of council to declare. — An ordinance which provides, "that any 
building, shed, out-house or structure of any kind that shall be partially destroyed by 
fire, or from any other cause, and shall be suffered by the owner thereof to remain in 
such condition after being notified by the department of public works to remove, 
repair or rebuild the same, shall constitute a nuisance," is as to such provisions void. 
City of Evansville v. Miller, 146 Ind. 613. 

Police power— Public welfare— Deleg-ation of police powers.— It is within the gen- 
eral power of a government to preserve and promote the public welfare, even at the ex- 
pense of private rights. The state may delegate to a municipal corporation authority 
to enact ordinances to preserve the public health, AValker v. Jameson, 140 Ind. 591. 

Power to declare a nuisance— Doubtful instances.— A municipal corporation has no 
power to treat a thing as a nuisance which can not be a nuisance ; but it has the power 



§ 404 CITIES OF MORE THAN ONE HUNDRED THOUSAND. 384 

to treat as a nuisance a thing which, from its character, location and surroundings, 
may, or does, become such. In doubtful instances, where a thing may or may not be a 
nuisance, depending upon a variety of circumstances requiring judgment and discretion 
on the part of the municipal authorities in the exercise of their legislative functions 
under a general delegation of power their action declaring a certain thing a nuisance is 
conclusive of the question and binding on the courts. Walker v. Jameson, 140 Ind. 
591. 

Police power— Deleg-ation— Exercise— Discretiou.— The state may delegate to a 
municipal corporation authority to enact ordinances to preserve the public health. It 
rests solely with the legislative discretion, inside the limits fixed by the constitution, to 
determine when public safety or welfare requires the exercise of the police power. If 
power be conferred on a municipal corporation by law of the state, and such" law does 
not prescribe the mode of performing the act, the corporate authorities are necessarily 
clothed with a reasonable discretion to determine the manner in which the act shall be 
performed; and all reasonable methods of exercising such power are permissible. 
Walker v. Jameson, 140 Ind. 591. 

Garbag'e ordinance — Cost of hauling'.— An ordinance prohibiting owners or tenants 
of premises from hauling away garbage from their premises, requiring them to be 
put in receptacles convenient for removal by a public contractor, requiring such owners or 
tenants to pay a certain specified amount per pound, but not prohibiting their destruc- 
tion of such garbage on the premises, is valid under and authorized by the provisions 
of this section. The cost of removal of such garbage is not an assessment upon the 
premises from which it is removed. Walker v. Jameson, 140 Ind. 591. 

Slaughter-houses— Ordinance.— An ordinance prohibiting the maintenance of any 
slaughter-house within the city, when authorized by statute, can not be defeated by the 
courts on the ground that it is unreasonable. The necessity or expediency prohibiting 
slaughter-houses in a city is implied from an ordinance making the prohibition, without 
any provision for investigation into the character or condition of the slaughter-houses. 
Belling v. City of Evansville, 144 Ind. 644; Rund v. Town of Fowler, 142 Ind. 214. 

Street— Safety of— Personal injury— Owner of fee— Neglig'ence.— Neither the city 
nor the owner of a fee in a street guarantees the absolute safety of the sidewalk ; and 
negligence is essential to the liability of the owner for an injury received upon such 
walk. Gaston v. Bailey, 14 App. 581. 

In order to charge the owner of the fee in a street in front of his premises with 
negligence, because of the defective fastening of the cover of a coal hole in the side- 
walk, it must appear that he made the hole and placed the cover in the sidewalk, or, if 
made and placed there by others without his authority or acquiescence, that he assumed 
control thereover. Gaston v. Bailey, 14 App. 581. 

License ordinance— Lang-uage construed.— An ordinance requiring a license fee of 
"every person or persons, firm, corporation or company carrying on a distilling or 
brewing business * * * and of all breweries and distilleries," applies to every es- 
tablishment, and exacts a separate fee for each one. City of Indianapolis v. Bieler, 
138 Ind. 30. 

License fee— Discretionary with city authorities.— The power granted by this sec- 
tion, "to tax, license and regulate distilleries and breweries, etc.," is a police power, 
and an ordinance enacted thereunder imposing a license fee is an exercise of police 
power in restraint of a harmful occupation, and the fee to be required is subject to the 
discretion of the city authorities. City of Indianapolis v. Bieler, 138 Ind. 30. 

Occupations — Breweries, etc.— License— Discrimination.— An ordinance of the city 
of Indianapolis licensing breweries, distilleries, and their depots and agencies estab- 
lished in the city, but excepting from its operation residents of the city doing a whole- 
sale business in bottling beer, is, as to the exception sought to be made, void for dis- 
crimination. City of Indianapolis v. Bieler, 138 Ind. 30. 



885 LEGISLATIVE COMMON COUNCIL. § 405 

Ordinance void in part and valid in part.— Where the part of an ordinance which is 
void for discrimination can be struck out, leaving the remainder complete in itself, sen- 
sible and capable of being exercised against all alike, the latter will stand. City of In- 
dianapolis V. Bieler, 138 Ind. 30. 

Yiaducts—Bridg'es— Grade crossing's, etc.— The legislature may delegate to munici- 
pal corporations the power to require railroads to construct viaducts, bridges, tunnels, 
etc., and to change grades, etc. Chicago, etc., R. Co. v. Nebraska, 170 U. S. 57; New 
York, etc., R. Co. v. Bristol, 151 U. S. 556; Wabash R. Co. v. Defiance, 167 U. S. 88; 
State V. Missouri, etc., R. Co., 33 Kan. 176. 

C. . MISCELLANEOUS. 

405. Penalties — Limit. — 24. In every ordinance which the com- 
mon council shall pass, there may be imposed a penalty for the viola- 
tion or non-performance thereof. This penalty may be either a for- 
feiture of money, or a fine or imprisonment, or both of the last two: 
Provided, That no penalty or fine shall exceed five hundred dollars 
($500), and no imprisonment shall exceed six months for one offense. 
R. S. 1894, § 3795. 

See notes, ante, §§ 118, 211, post, §§ 1237, 1383. 

406. Imprisonment for not paying fines. — 25. The city council 
shall have power to provide by ordinance for the imprisonment of any 
person against whom a penalty, fine or cost for violation of any penal 
ordinance shall have been adjudged, until such fine, penalty and costs 
are fully paid or replevied; also, to compel the enforcement of manual 
labor by such defendant, and by persons sentenced to imprisonment, 
by the use of sufiicient force and means. R. S. 1894, § 3796. 

Penalty — Not a debt. — A penalty is not a debt in the sense of the constitution. See 
ante, § 12, note. 

407. Duties of departments. — 26. Whenever any executive or ad- 
ministrative function shall be required to be performed by any ordi- 
nance or resolution of such common council, the same shall be per- 
formed by the proper executive department, and not by said council. 
No new department shall be created. Said ordinance shall designate 
the department which is to perform the duties thereunder; but if such 
designation is not made, either by statute or ordinance or resolution, 
the mayor shall assign such duties to the proper department. The 
council shall not elect or appoint an}^ person to any office or employ- 
ment whatever. R. S. 1894, § 3797. 

Board of examiners— Civil service. — The creating of a board of examiners by the 
heads of departments, for ascertaining the comparative fitness of applicants for position 
or promotion, is not the creation of an inde'pendent executive or administrative depart- 
ment. Newco-mb v. City of Indianapolis, 141 Ind. 451. 

D. INVESTIGATION AND I^[PEACHMENT. 

4:08. Chiarges against officers — Trial, — 27. The common council 

CiT. AND To.— 25 



§ 409 CITIES OF MORE THAN ONE HUNDRED THOUSAND. 386 

shall have power to supervise and investigate all departments, officers 
and employes of the government of such city, and to examine into 
any charges preferred against the same, and into the affairs of any 
corporation, department or board in which the city may be interested, 
or with which it may have entered into a contract, or may be about so 
to do. It shall have power of access to all records thereto pertaining, 
and power to compel the attendance of witnesses, and the production 
of books, papers and other evidence, at any meeting of the body, or 
any committee thereof, and for that purpose may issue subpenas and 
attachments in any case of inquiry, investigation or impeachment, 
and cause the same to be served and executed in any part of the county 
where such city is located. If any witness shall refuse to testify as to 
any fact within his knowledge, or to produce any books or papers 
within his possession, or under his control, required to be used as 
evidence in any such case, the clerk of the body by whose authority 
such witness was subpenaed, if so directed by the body or com- 
mittee holding the investigation, shall forthwith report the facts re- 
lating to such refusal to the circuit or superior court in such county, 
or the judge thereof, and all questions arising upon such refusal, and 
also upon any new evidence not included in such first report (which 
new evidence may be offered either in behalf or against such wit- 
ness), shall at once be heard by such court or judge. If the court or 
judge determine that the testimony or evidence required by such wit- 
ness is competent and relevant, and material, and ought to be given 
or produced by the witness, the court or judge shall make an order 
requiring the witness to testify, or to produce books and papers, or 
both. In case of a refusal to comply with such order, the court or 
judge shall have power to commit the witness or otherwise punish 
him for contempt, as provided for in the laws governing contempt of 
court in this state. No witness shall be excused from testifying in 
any criminal proceeding, or in any investigation or inquiry before the 
council, or any committee thereof, or any officer of the city having the 
right to conduct the investigation, touching his knowledge of any 
offense committed against the provisions of this act, or of any or- 
dinance passed in pursuance thereof, or continued in force by this act. 
But such testimony shall not be used against him in any criminal 
prosecution whatever. R. S. 1894, § 3798. 
See notes, ante, § 119. 

409, Trial of charges — Tote to remove, — 28. Whenever any writ- 
ten charges shall have been adopted by the council or any committee 
thereof, against any officer, employe or department of the corporation, 
except members of the council, the same shall be heard by the coun- 
cil, under such regulations as may be prescribed by ordinance. It 
shall require a two-thirds vote to impeach or remove an officer or em- 
ploye. R. S. 1894, § 3799. 



387 LEGISLATIVE COMMON COUNCIL. § 410 

E. FINANCIAL. 

410. Taxes — Levy. — 29. The common council shall have power 
to order and direct the levy of an annual tax not exceeding the rate of 
ninety cents upon every one hundred dollars ($100) of valuation for 
any one year, as shown by the tax duplicate for the current year, to 
manage the finances of the city, subject, however, to the powers and 
duties herein prescribed in respect to the several executive depart- 
ments created by this act. The assessment of property and collection 
of taxes shall be made as now^ provided by law: Provided, That all 
real estate, w^ithin the limits of such city, not exempt from taxation 
by the laws of this state, shall be assessed at its fair cash value, with- 
out discrimination in the valuation of lands used for agricultural pur- 
poses within the limits of such city. [As amended, Acts 1893, p. 56. 
In force February 22, 1893.] R. S. 1894, § 3800. 

See Taxation, R. S. 1894, chap. 108 (§ 8408, et seq.), and Burns' Supp. 1897, chap. 108 
(§8411, et seq.y, and Acts 1899, pp. 422, 430, 497, 516; and notes, ante, § 212, et seq. 

Assessments for i)iiblic improvements— City property. — A municipal corporation is 
liable for its proportion of the cost of local improvements assessed against it even 
though the statute exempts public property from taxation. Warner v. City of New 
Orleans, 87 Fed. Rep. 829. 

4:11. Loans, — 30. The common council shall have power to bor- 
row money to an amount not exceeding two per cent. (2 per cent. ) of 
the taxable property of such city, as the same may appear on the tax 
duplicate of such city for the year in which such loan shall be effected: 
Provided, That the entire money borrowed shall not at any time exceed 
two per cent. (2 per cent. ) of the taxable property of such city. Such 
loans may be made only for the purpose of procuring money to be 
used in the legitimate exercise of the corporate powers of such city, 
and for the payment of legitimate corporate debts. R. S. 1894, § 3801. 

See constitutional limitation, ante, § 39, and notes, and notes, ante, § 143. 

Ordinance should state purpose of loan. — When the city proposes to borrow money 
the ordinance should state the purpose of the loan, in order that it may appear that the 
money procured is to be used in the legitimate exercise of corporate powers, or for the 
payment of legitimate corporate debts. Coffin v. City of Indianapolis, 59 Fed. Rep. 
221. 

412, Bonds — Issue and sale,— -31. Such ordinance for loans may 
authorize the issue of bonds or other city obligation, negotiable or not 
bearing interest at a rate not exceeding six per cent., and running not 
to exceed thirty years. Such ordinances shall provide for the time 
and manner of advertising the sale of such bonds or other securities, 
and of the receipt of bids for the same, together with the mode and 
terms of sale. All duties with regard to the preparation, advertise- 
ment, negotiation and sale of such bonds or other securities shall be 
performed by the head of the department of finance. Said ofhcer, 
after causing such bonds to be properly executed, shall deliver the 
same to the city treasurer, taking his receipt therefor, and upon the 



§ 413 CITIES OF MORE THAN ONE HUNDRED THOUSAND. 388 

conclusion of the contract for the sale of such bonds or other securi- 
ties shall certify to the treasurer the amount which the purchaser is 
to pay for the same, together with the name of the purchaser. And 
thereupon it shall be the duty of the treasurer to receive from the pur- 
chaser the amount so certified by the head of the department of 
finance, and to deliver the bonds or other securities to the purchaser, 
taking his receipt therefor. The treasurer and the head of the depart-, 
ment of finance shall thereupon each make a report of his proceedings 
to the mayor. R. S, 1894, § 3802. 

413, Temporary loans, — 32. Temporary loans may be authorized 
by ordinance of the common council in anticipation of the revenue of 
the city for the current and follow^ing year, and payable within that 
period, but the aggregate amount of such temporary loan in any fiscal 
year shall not exceed the amount of the city tax levy for the same 
year. No temporary or other loan upon the revenue of any current 
or succeeding year shall be made until all temporary loans upon the 
revenue of any preceding year shall have been fully paid. R. S. 1894, 
§ 3803. 

414, Refunding bonds,— 33. The common council shall have 
power to authorize the issue and sale of refunding bonds, in order to 
raise money to take up any outstanding bonds of such city, or to ex- 
change with the holders of such outstanding bonds. The same shall 
be governed by the provisions of the second preceding section, so far 
as the same are applicable. R. S. 1894, § 3804. 

Refunding bonds, l-co ante, '^^ i oJ, 14o, 144, 157, post, §§ 1001-1003, 1005, and notes. 

Eefunding' bonds. — Under this section refunding bonds can not be issued to raise 
money to replace in the treasury money theretofore used in the payment of bonds. 
Coffin V. City of Indianapohs, 59 Fed. Rep. 221. 

Under the terms of this statute refunding bonds are of two sorts : First, those which 
are issued and sold to raise money to take up outstanding bonds of the city ; or, second, 
those which are issued by the city to the holders of its outstanding bonds in exchange 
therefor. Refunding bonds can not lawfully be issued for any other purpose. Coffin v. 
City of Indianapolis, 59 Fed. Rep. 221. 

Where an ordinance provided for the issue and sale of $64,000 of refunding bonds in 
one series, and $21,000 of the bonds were not refunding bonds, the whole proposed issue 
was void, and one who had bid for the whole series and to whom the same had been 
awarded was not bound to accept them or any part of them. Coffin v. City of Indian- 
apolis, 59 Fed. Rep. 221. 

415. Warrants on treasurer— When proMbited.— 34. No order or 
warrant shall be drawn against the funds of such city, in the hands 
of the treasurer, or other officer, unless an appropriation has been 
made by ordinance of money for such purpose which is not exhausted, 
or unless the same shall be for a salary fixed by statute or ordinance, 
or for payment of any judgment, which such city is compelled to pay. 
R. S. 1894, § 3805. 

416. Interest on loans — Kedemption, — 35. All bonds or other city 
securities offered for sale, pursuant to the provisions of this act, may 
bear annual interest not exceeding six per cent. (6 per cent.), may 



389 LEGISLATIVE COMMON COUNCIL. § 417 

run not longer than thirt}^ years, and may contain an option allowing 
such cit}" to redeem the same at earlier specified dates, in whole or in 
part, if so directed in the ordinance authorizing such issue. R. S. 
1894, § 3806. 

417. Failure to levy tax — Appropriations. — 36. If the common 
council for any year shall fail to pass ordinances fixing the annual tax 
levy and appropriating money for the various executive departments 
by ar before the first day of October in any year, then and in that case 
the appropriations made for such department, or departments for the 
preceding year shall be deemed to be continued and renewed for the 
current year, and the tax levy for the preceding year continued. R. S. 
1894, § 3807. 

F. ANNEXATION. 

418. Corporate boundaries — Annexation of lands.— 37. The com- 
mon council shall have power, by ordinance, to declare and define the 
entire corporate boundaries of such city, and such ordinance, properly 
certified, shall be conclusive evidence, in any court or proceeding, of 
the boundaries of such city, except as provided in the next section. 
Such ordinance defining the entire city boundary may include contig- 
uous territory, whether platted or not, not previousl}^ annexed (and 
such annexation shall be binding, unless such newly annexed terri= 
tory shall be within the limits of another town or city, in which case 
there may be an appeal, as hereinafter provided). Said common 
council may also, by separate ordinance, not purporting to define the 
entire boundaries of such city, annex contiguous territory, whether 
platted or not, to such city, and a certified copy of such ordinance 
shall be conclusive evidence in any proceeding that the territory there- 
in described was properly annexed and constitutes a part of such city, 
except as provided in the next section. Immediately after the pas- 
sage of every such ordinance as is provided for in this section, the 
same shall be published for at least two consecutive weeks in a daily 
newspaper of general circulation published in such citv. R. S. 1894, 
§ 3808. 

See chapter 1, article 6, Annexation of Territory, ante §§ 253-255 and nnles, niid chan- 
ter 6, article 2, Annexation — Boundaries, post §§ 1017-1048, and notes. 

Township school property— Annexation of— Title to— Liability.— The annexation 
to a city of territory which contains a school house and lot belonging to the school 
township from which the territory is taken, gives no right of action to such township 
against the school corporation of the city for the value of the property, or for any part 
of the unpaid indebtedness of the township for the purchase of the lot, or the erection 
of the house, and under the act of March 3, 1893, the title to the school property em- 
braced in the annexed territory vests in the school corporation of the city to which the 
territory is annexed. Said statute is not invalid as destructive or int)erfering with vested 
rights, as the township holds the title only as trustee, and the state may change the 
trustee. Board, etc., v. Center Township, 143 Ind. 391. 

419. Appeal from annexation proeeedinji's — Trial — Jiidirnient. — 

38. Whenever such territory is annexed to such city as provided in 



§ 419 CITIES OF MORE THAN ONE HUNDRED THOUSAND. 890 

the foregoing section, whether by general ordinance defining the city 
boundaries, or by special ordinance for the purpose of annexing terri- 
tory, and such territory so sought to be annexed is unplatted ground, 
or lies within the corporate limits of any other town or city, an appeal 
may be taken from such annexation by one or more persons deeming 
him or themselves aggrieved, or injuriously affected, filing their re- 
monstrance in writing against such annexation, together with a copy 
of such ordinance in the circuit or superior courts of the county where 
such territory is situated within ten days after the last publication 
provided for in the preceding section; such w^ritten remonstrance or 
complaint shall state the reason why such annexation ought not in 
justice take place. Notice of such proceedings by way of summons 
shall be served upon the proper officer of the city seeking to make an- 
nexation, and such city shall become defendant in such cause, and 
shall be required to appear and answer as in other cases. The court 
shall thereupon proceed to hear and determine such appeal without 
the intervention of a jury, and shall give judgment upon the question 
of such annexation according to the evidence which either party may 
introduce relevant to the issue. If the court should be satisfied upon 
the hearing that less than 75 per cent, of the persons owning property 
in the territory sought to be annexed, if such territory is unplatted 
ground, or that less than two-thirds of the qualified voters of the town 
or city sought to be annexed, if such territory lies within the cor- 
porate limits of any other town or city, have remonstrated and that 
the adding of such territory to the city will be for its interest and will 
cause no manifest injury to the persons owning property in the terri- 
tory sought to be annexed, he shall so find and said annexation 
shall take place. If the court shall be satisfied that 75 per cent, or 
more of the persons owning property in the territory sought to be 
annexed, if such territory is unplatted ground, or that two-thirds or 
more of the qualified voters of the town or city sought to be annexed, 
if such territory lies within the corporate limits of any other town 
or city, have remonstrated, then such annexation shall not take place, 
unless the court shall find from the evidence that the prosperity of 
such city and territory will be materially retarded and the safety of 
the inhabitants and property thereof endangered without such annex- 
ation. In case the court shall so find, the annexation shall take place, 
notwithstanding the remonstrance. Such decision shall be final, and 
no appeal shall lie therefrom, nor shall the laws touching change of 
venue from the county apply. But changes of venue from the judge 
may be had as in other cases. Costs shall follow judgment. Pending 
such appeal, and during the time within which such appeal maybe 
taken, such territory sought to be annexed shall not be deemed a part 
of the annexing city. Upon the determination of such appeal, the 
judgment shall particularly describe the ordinance upon which the 
appeal is based, and it shall be the duty of the county clerk to forth- 
with deliver a certified copy of such judgment to the clerk of such 
city, who shall record the same in the ordinance record, and make a 



•391 LEGISLATIVE COMMON COUNCIL. § 420 

cross reference to the page thereof upon the margin where such 
original ordinance was recorded. In case the decision is adverse to 
such annexation, no further annexation proceedings for such territory 
shall be lawful for two years after the rendition of such judgment: 
Provided, That in case any incorporated town or city shall be located 
within the corporate limits of such other city and not annexed as con- 
templated in this act, such incorporated town or city so located as 
aforesaid, shall not be entitled to have or receive from such incorpo- 
rated city within which it is located, any fire or police protection, un- 
til such minor town or city shall first have entered into a contract or 
agreement with the city within which it is located, binding such 
minor corporation to pay a reasonable compensation to be agreed upon 
mutually by such corporate authorities. The same regulation shall 
apply to sweeping, cleaning and sprinkling service, and to sewer 
privileges: Provided, That if the corporate authorities of such munici- 
palities can not mutually agree as to the compensation to be paid for 
such services and privileges by such minor town or city, either of 
such municipal corporations may by petition present the matter to the 
judge of the circuit [court] of the county in which such municipali- 
ties are located, who shall cause such other town or city to be notified of 
such petition, and require the same to answer thereto, and shall have 
jurisdiction on such applications to hear and determine such matter 
and determine and fix such reasonable compensation, and his adjudi- 
cation shall be final. The cost of such proceedings shall be paid by 
the municipality making such application. [As amended. Acts 1899, 
p. 451. In force March 4, 1899.] 

Note— Acts and proceedings of the departments and officers of the city of Indianap- 
olis, under §§ 38, 40, 45, 56, 60, 61, 73, 77, 82, 89, 90, 91, 97, 100, 110, 114, and supple- 
mental § 136 of this act, as the same were attempted to be amended and enacted by act 
of 1895 (Burns' Supp. 1897, § 3809, et seq.), were legahzed and validated by act of ^1899 
(Acts 1899, p. 449). 

Appeal— Provisions constitutional. — Under this section prior to its amendment by 
act of 1895, it was provided that, "an appeal may be taken from such annexation by 
one or more resident freeholders in the territory sought to be annexed, etc." ; this pro- 
vision as to appeal was not in conflict with § 23, article 1, of the State Constitution as de- 
nying equal privileges or immunities to land-owners not resident in the territory sought 
to be annexed. And said provision is not in conflict with the fourteenth amendment of 
the federal constitution, as authorizing the taking of property without due process of 
law, or in denying equal protection of the law. Taggart v. Claypool, 145 Ind. 590. 

Same — Eailroad. — Under said section, prior to its amendment in 1895, said provision 
as to the right of appeal confined the right of appeal to those persons who were citi- 
zens and freeholders of the territory sought to be annexed, and a railroad company 
which owned property in the territory sought to be annexed, and maintained the office 
of the master mechanic of said company and the shops for the construction and repair 
of the cars, etc., in such territory, and had also an office and place of business in the 
city to which the territory was sought to be annexed, was not a resident freeholder in 
the territory sought to be annexed within the intent of the statute, and was not entitled 
to an appeal. Pittsburgh, etc., R. Co. v. City of Indianapolis, 147 Ind. 292. 

420. Parts of city or town not to be annexed — Debts, — 39. No 



§421 



CITIES OF MORE THAN ONE HUNDRED THOUSAND. 



392 



such annexation shall be made, under the foregoing sections, of a part 
of the territory of any other incorporated town or city, but only of the 
whole corporate territory thereof. In case of such annexation, the 
two corporations shall be deemed to be consolidated, and the consoli- 
dated corporation shall be bound for all the debts and liabilities, and 
shall be the owner of all corporate property, franchises and rights of 
every nature, of both of such municipal corporations. R. S. 1894, 
§ 3810. 

421. Disauuexing territory. — 40. The common council shall have 
power by ordinance to disannex and throw out any territory forming 
a part of the corporate limits of such city upon a petition of a majority 
of the owners of real estate therein, but such disannexation shall not 
relieve such territory from the payment of any municipal assessments 
for which such real estate may have become liable. [As amended, 
Acts 1899, p. 451. In force March 4, 1899.] 



ARTICLE 3.— EXECUTIVE OFFICERS AND DEPARTMENTS. 



Assessment of damages and bene- 
fits. 

Minors and insane persons. 

Remonstrance — Appeal. 

Appeal, how taken— Trial. 

Roll of assessments— Liens. 

Assessments, when due — Collection. 

What damages paid by city. 

Certificates for damages. 

Order — Petition for improvement — 
Notice —Remonstrance — Appraise- 
ment. 

Cost of improvements — Improve- 
ment of one side of street or side- 
walk, etc. — Cost — Apportionment. 

Lots liable to assessment — Liens — 
Sales — Redemption. 

Payment by installments. 

Assessment roll — Contents — Affida- 
vit of contractor. 

Improvment assessments — Duplicate 
— Payment— Notice to delinquents. 

Payment by installments —Waiving 
errors — Payment before due. 

Duty of treasurer — Separate accounts. 

Bonds for street improvements — In- 
stallments — Penalty— Foreclosure. 

Failure to pay installment — Effect- 
Foreclosure —Attorneys ' fees — No- 
tice to pay — Limitation. 

Change of levees or water-course. 

Liens of assessments —What governs. 

Sewers and drains — Establishing. 

Costs of sewers — How paid. 



SEC. 




SEC. 


422. 


Vesting of executive authority. 


446. 


423. 


Mayor and clerk— Election— Quali- 






fications. 


447. 


424. 


Vacancy in office of mayor— Elec- 


448. 




tion. 


449 


425. 


Acting mayor. 


450 


426. 


Duties of mayor. 


451 


427. 


Salary of mayor. 


452. 


428. 


Clerk— Duties— Salary . 


453. 


429. 


Departments established— Rules. 


454 


430. 


Quahfications of members of depart- 
ments — Fees, how applied. 




431. 


Estimates of expenditures— Appro- 
priations. 


455. 


432. 


Contracts limited to appropriations. 




433. 


Issuiiig warrants beyond appropria- 
tions—Penalty. 


456 


434. 


Comptroller— Appointment— Salary. 


457 


435. 


Duties of comptroller. 


458 


436. 


Deputy comptroller— Appointment- 






Salary— Powers. 


459 


437. 


City attorney — Assistants — Appoint- 
ment—Duties—Salaries. 


460 


438. 


Board of public works— Appointment 






—Salaries —Bonds. 


461 


439. 


Clerk of board— Salary— Civil engi- 
neer—Appointment—Salary. 


462 


440. 


Powers of board. 


463 


441. 


Work, how to be done. 




442. 


Drawings for w^ork— Notice of let- 






ting—Collusion. 


464 


443. 


Expenses— How paid. 


465 


444. 


Condemnation of property. 


466 


445. 


List of ow^ners of property taken. 


467 



EXECUTIVE OFFICERS AND DEPARTMENTS. 



422 



SEC. 

468. Main sewers — Assessment of costs — 
Constraction through cemeteries. 

4(59. Assessment roil — Contents — Collec- 
tion — Laws applicable. 

470. Levees, drains and water-courses— 

Change and construction. 

471. Sprinkling and sweeping— Contracts. 

472. Cost of sprinkling and sweeping. 

473. Collection of sprinkling assessments. 

474. Contracts and costs for lamp posts. 

475. Board of public safety— Appoint- 

ment— Salary. 

476. Rules — Quorum— Chairman — Clerk. 

477. Duties of board. 

478. Members of fire and police force. 

479. Charges against firemen and police- 

men—Hearing. 

480. Powers of policemen. 

481. Duties of policemen. 

482. Additional fire and police force. 

483. Oaths — Who may administer. 

484. Duties of police force. 

485. Gaming. 

486. Arrest and trial of offenders. 

487. Political work prohibited — Penalty. 

488. Bonds of appointees. 

489. Insurance fund, 

490. Treasurer and assessor. 

491. Duties of head of department of 

finance. 

492. Salary of treasurer in cities of one 

hundred thousand. 

493. Pay for assessment. 

494. Penalty for treasurer or assessor re- 

ceiving pay. 

495. Failure to perform duties — Removal. 

496. Board of health and charities— Ap- 

pointment— Salary— Duties — Sani- 
tarian—Duties—Sanitary officers. 



SEC. 

497. 

498. 

499. 
500. 

501. 
502. 

503. 
504. 
505. 
506. 

507. 
508. 

509. 
510. 

511. 

512. 

613. 

5.14. 



515. 

516. 



517. 



518. 

519. 
520. 



Health ordinances — Plumbing in- 
spector. 

Board of park commissioners — Ap- 
pointment — Oath of members. 

Terms of office. 

Chairman — Clerk — Employes — Re- 
movals — Duties and compensation. 

Office — Records, etc. 

Report to mayor — Receipts and ex- 
penditures. 

Quorum. 

Superintendent of parks. 

Government of parks. 

Powers of board. 

May bring actions. 

Charge of parks— Rules and regula- 
tions. 

Authority of board — Expenditures. 

Franchises for railway prohibited. 

Sale of park lands — Concerning erec- 
tion of buildings. 

Grants — Conveyances — Devises, etc., 
for parks. 

Admission to gardens and museums. 

Streams and water-courses within city 
limits — Rules — Regulations — Ordi- 
nances. 

Power of eminent domain. 

Assessment of benefits and damages — 
Appraisers — Condemnation proceed- 
ings — Appeal. 

Assessments —Notice — Hearing prop- 
erty owners — Assessment roll— Con- 
firmation — Assessment lien — Fore- 
closure, 

Benefits and damages — Tender — Pay- 
ment. 

Payment for lands. 

Description of land filed in recorder's 
oflace. 



EXECUTIVE. 

4:22, Testing of executive authority, — 41. The executive and ad- 
ministrative authority of such city shall be vested in a mayor, city 
clerk, the departments hereinafter created, or referred to, and such 
other officers' as may hereafter be appointed by virtue of this act. 
R. S. 1894, § 3812. 

For powers and duties of executive and administrative officers under the general law 
of 1867, see ante, § 59, ct seq., and notes. 



423, Mayor and clerk — Election — Qualiiications, — 42. There shall 



§ 424 CITIES OF MOKE THAN ONE HUNDRED THOUSAND. 394 

be chosen at each general election, hereinbefore provided for, by the 
voters of said city, a mayor and a city clerk, each of whose terms of 
office shall commence at 12 o'clock, noon, on the Thursday next after 
their election, and shall continue two years, or until his respective 
successor is elected and qualified, except as herein otherwise provided. 
No person shall be qualified for the office of mayor who has not been 
a citizen and resident of such city for three years previous to his elec- 
tion, and who is not at least twenty-five (25) years of age, R. S. 
1894, § 3813. 

424. Yacancy in office of mayor — Election. — 43. In case of a va- 
cancy occurring in the office of mayor, from death, resignation or oth- 
erwise, more than six (6) months before a general election shall 
occur, it shall be the duty of the acting mayor to take official notice 
thereof, and within ten (10) days thereafter issue his proclamation 
calling for a special election by the voters of such city, at a date 
therein named, not later than forty (40) days, nor earlier than twen- 
ty-five (25) days after the issuance of such proclamation, to fill such 
vacancy or vacancies. Such special election shall be governed by the 
laws and regulations governing general elections. R. S. 1894, § 3814. 

425. Acting mayor. — 44. In case of a vacancy in the office of 
mayor from death, resignation or otherwise, or in case of disability on 
the part of the mayor to perform the duties of his office, the city comp- 
troller shall perform the duties of acting mayor and be entitled to his 
salary for the time being: Provided, That during the time of perform- 
ing such duties of acting mayor he shall not perform any duties as 
comptroller. R. S. 1894, § 3815. 

426. Duties of mayor. — 45. It shall be the duty of the mayor: 
To cause the ordinances of the city and the laws of the state to be exe- 
cuted and enforced. To communicate to the council at least once a 
year a statement of the finances and general conditions of city affairs, 
and also such information in relation to the same as he may be called 
upon to furnish from time to time. To make such recommendations 
in writing, by message to the council, as he may deem expedient. To 
call special meetings of the council when the same shall be expedient. 
To perform such duties of an executive or administrative character as 
may be prescribed by law, and he shall be responsible for the good 
order and efficient government of the city. To fill by appointment 
vacancies for unexpired terms in the offices of city clerk and police 
judge. To appoint the heads of departments as hereinafter created, 
who shall hold office until their successors are appointed and qualified: 
Provided, That the mayor may at any time suspend or remove from 
office any or all of such persons whether appointed by him or his pre- 
decessors, by notifying them to that effect and sending a message to 
the council stating in writing his reasons for such removal. To sign 
all bonds, deeds and written contracts of the corporation, and all 
licenses issued pursuant to law by any department. He shall upon 
reasonable notice of not less than three days, to the person complained 
of, hear any complaint against any person to whom license has been 



395 EXECUTIVE OFFICERS AND DEPARTMENTS. § 426 

issued, and may issue subpenas and compel the attendance of wit- 
nesses to testify on such hearing; may administer oaths to such 
witnesses, and require them to testify. The rules of practice 
and procedure in force in trials in the police court of such 
city, so far as applicable, including right to appear by coun- 
sel and to compel the attendance of witnesses for person com- 
plained against, shall apply to such proceedings before the 
mayor. Upon the hearing, if the mayor shall find that the 
person complained of has willfully violated any of the terms and con- 
ditions of his license, or has willfully done, authorized or permitted 
to be done any act in violation of the law or the ordinances of such 
city relating to the business or place of business licensed, he shall re- 
voke or suspend such license. He shall file a copy of his findings 
and determination with the city comptroller within twenty-four hours 
after it is made. To approve or disapprove, in writing, within ten 
(10) days after receiving the same, every ordinance or resolution of 
the council, and he shall transmit to the body in which the same 
originated within such time, a message, announcing such approval or 
veto. In case of a veto, he shall state in writing his reasons therefor, 
and such resolutions or ordinance shall not become operative unless 
the same is passed over such veto, by a two-thirds vote of the common 
council: Provided, That in ordinances appropriating money or levy- 
ing a tax or taxes, the mayor may approve or disapprove of the sepa- 
rate items of such appropriation or levy. In case of disapproval of 
any item or items, and approval of the remainder of the ordinance, so 
much of the same as is approved shall be law, and operative, and 
those items which are disapproved shall not become law and operative 
unless passed over his veto by a two-thirds vote as above provided. 
To call together the heads of departments, except of assessment and 
collection, for consultation and advice upon the affairs of the city at 
least once a month, and to call on the heads of all departments for re- 
ports from the same, which it shall be their duty to prepare and sub- 
mit in writing. Records shall be kept of such meetings above pro- 
vided for, and rules and regulations shall be adopted thereat for the 
administration of the affairs of the city departments, not inconsistent 
with any law or ordinance, which regulations shall prescribe a com- 
mon and systematic method of ascertaining the comparative fitness 
of applicants for office, position and promotion, and of selecting, 
appointing and promoting those found to be best fitted, except the 
department of public safety, without regard to political opinions or 
services. To appoint, as often as he thinks proper, three competent 
persons to examine without notice, the accounts of any department, 
officer or employe, and the money, securities and property of the city 
in their possession or charge, and report the result of such investiga- 
tion. [As amended, Acts 1899, p. 451. In force March 4, 1899.]' 

Powers and duties of mayor under general law of 1867. See cmte, § 80 and notes. 
Note. — Acts and proceedings of the departments and officers of the city of Indianap- 
olis, under §§ 38, 40, 45, 56, 00, 61, 73, 77, 82, 89, 90, 91, 97, 100, 110, 114, and supple- 



§ 427 CITIES OF MORE THAN ONE HUNDRED THOUSAND. 396 

mental § 136 of this act, as tlie same were attempted to be amended and enacted by 
act of 1895 (Burns' Supp. 1897, § 3089, et seq.), were legalized and validated by act of 
1899 (Acts 1899, p. 449). 

Power to adopt civil service rules— Examining- board.— This statute confers au- 
thority to adopt rules and regulations, and to create a board of examiners as a means 
of ascertaining the comparative fitness of applicants for office, position and promotion, 
and of selecting, appointing and promoting those found to be best fitted, except in the 
department of public safety, without regard to political opinions or service. Newcomb 
V. City of Indianapolis, 141 Ind. 451. 

Authority of heads of departments— Discretion— Non-interference by courts.— It 
was clearly the legislative intent that the governing body, composed of the heads of the 
several departments, vested with the right or power to adopt rules and regulations and 
create a board of examiners as a means of ascertaining the comparative fitness of appli- 
cants for office, etc., should be clothed with a reasonable discretion as to the medium, 
agency or means to be employed to give effect to the provisions of the law, and that 
discretion will not be interfered with or called iri question by the courts, except where 
the power is exceeded or fraud imputed or shown, or in case there is manifest invasion 
of private rights. Newcomb v. City of Indianapolis, 141 Ind. 451. 

The creating of a board of examiners by the heads of departments, which is but a 
medium or agency by which the comparative fitness of applicants for position or pro- 
motion might be ascertained, was not an attempt to establish an independent executive 
or administrative department in violation of the prohibition in § 48 of this statute. 
Newcomb v. City of Indianapolis, 141 Ind. 451. 

427. Salary of mayor. — 46. The mayor of such city shall be paid 
an annual salary of four thousand dollars, vt^hich may be increased by 
ordinance to any amount not exceeding five thousand dollars. R. S. 
1894, § 3817. 

4:28. Clerk— Duties— Salary,— 47. The clerk of such city shall be 
the clerk of the common council and may appoint one or more deputies 
at his own expense to assist him. He shall keep the records of the 
proceedings of said body. Said city clerk shall have charge of all the 
papers relating to the business of said common council, shall prepare 
and keep an ordinance book, as elsewhere provided in this act, shall 
have charge of all documents and books, the keeping of which may be 
intrusted to him by statute or ordinance, shall keep the city seal, and 
shall perform all other duties prescribed by law or incident to his 
office. He shall receive a salary of three thousand dollars ($3,000) 
per year for all such services, and shall not receive any other compen- 
sation, fee or perquisite, except for furnishing certified copies of the 
records in his possession, which shall be received as evidence in any 
proceeding, and for which the said clerk shall receive like fees as paid 
to the county clerks for similar services. Said city clerk shall also be 
the clerk of the police court. Said clerk shall deliver over to his suc- 
cessor, as soon as the same shall have qualified for office, all docu- 
ments, books and belongings of his office. The city clerk may be 
authorized by the common council to employ a deputy at a salary not 
to exceed twelve hundred ($1,200) dollars per year: Provided, That 



397 EXECUTIVE OFFICERS AND DEPARTMENTS. § 429 

it is shown to the satisfaction of the council that such clerk is neces- 
sary. R. S. 1894, § 3818. 

See ante, §398. 

Duties of clerk under general law 1867, see ante, §§ 86, 87, and notes. 

DEPARTMENTS. 

429. Departments established — Rules. — 48. The following execu- 
tive departments are hereby established in such city: 
a. Department of finance. 
h. Department of law. 

c. Department of public works. 

d. Department of public safety. 

e. Department of assessment and collection. 
/. Department of public health and charities. 

No other executive or administrative departments shall be estab- 
lished in such city. Subordinate officers and employes not herein pro- 
vided for shall be appointed by the heads of their respective depart- 
ments. Each department shall have power to prescribe rules and 
regulations not inconsistent with any statute or ordinance, or regula- 
tion established pursuant to section 45 of this act, for its own gov- 
ernment, regulating the conduct of its officers, clerks and employes, 
the distribution and performance of its business, and preservation of 
books, records, paper and property under its control. Each depart- 
ment shall promptly furnish to the mayor or the common council any 
information which may be called for in relation to its affairs. The 
heads of said departments, except the department of assessment and 
collection, shall be appointed by the mayor. Each of said depart- 
ments shall have power to designate and appoint, and at pleasure re- 
move, a person in such department as deputy or first assistant. All 
official business of the several departments shall be transacted at the 
offices thereof, and a continuous record or minute shall be kept at 
said offices respectively of such business. The officer or officers at 
the head of any department may appoint and remove any of his or 
their clerks and assistants, subject to any regulations adopted pursuant 
to section 45 of this act, and, unless otherwise fixed by ordinance, 
may fix their salaries: Provided, That after the expiration of thirty 
(30) days from the time when a new officer or officers shall have been 
appointed to the head of a department, he or they may remove clerks 
or assistants only upon filing in writing with the city clerk the rea- 
sons for any such removal, except that foremen, inspectors and labor- 
ers temporarily employed under the department of public works may 
be removed at any time at the pleasure of the department. All officers 
shall give bond as required by ordinance, except when otherwise pro- 
vided herein. R. S. 1894, § 3819. 

Examining* board— Civil service ag-ency.— The creating of a board of examiners by 
the heads of departments, under § 45 of this act, as a medium or agency by ^vhich the 
comparative fitness of applicants for position or promotion might be ascertained, is not 



§ 430 CITIES OF MORE THAN ONE HUNDRED THOUSAND. 398 

the establishment of an independent executive or administrative department, in viola- 
tion of the prohibition of this section. Newcomb v. City of Indianapolis, 141 Ind. 451. 

430. Qualifications of members of departments— Fees, bow applied. 

— 49. No person shall be appointed as the head of any department, 
or as a member of any board herein provided for, unless he shall 
have been a resident and elector of such cit}^ for three years imme- 
diately prior thereto. No person who is paid a salary for his services 
from the city treasury shall receive to or for his own use, directly or 
indirectly, any fees, perquisites of office, commissions, percentages, 
or money paid to him in his official capacity, unless specifically author- 
ized in this act; but all fees, perquisites, commissions, percentages, 
and moneys so paid and received by or for any such officer or person 
shall be the property of the city, and shall be paid by him into the 
city treasury; and all moneys received for licenses or permits shall be 
paid into the treasury weekly without deduction by the officer or de- 
partment receiving them, and every such officer or person who shall 
receive any fees, perquisites, percentages, or other moneys which be- 
long to the city, and should be so paid into its treasury, shall, before 
he shall be entitled to receive or be paid his salar}^ make, under oath, 
a detailed statement and return to the head of the department of 
finance in such form as he may prescribe, shov\nng the aggregate 
amount of all such moneys received by him since the last preceding 
statement and return, and shall produce a receipt showing the pay- 
ment of such sum to the treasurer. The comptroller may require any 
such officer or person to make such statement and return to him, if it 
be not made as herein provided, and examine such officer or person 
under oath touching the matter herein provided for. R. S. 1894, 
§ 3820. 

431. Estimates of expenditures — Appropriations. — 50. It shall be 
the duty of each executive department, before the commencement of 
each fiscal year, to submit to the joint meeting of the heads of the de- 
partments and of the various boards hereinbefore provided for in section 
45, an estimate of the amount of money required by their respective 
departments for the ensuing fiscal year, stating with as great particu- 
larity as possible each item thereof. The comptroller shall at the same 
time submit a statement or estimate of city expenditures for other pur- 
poses, for the ensuing year, over and above the moneys proposed to be 
used by the various executive departments, giving with as great par- 
ticularity as possible each item thereof. After such meeting, and re- 
ports and consultation, the city comptroller shall thereupon proceed 
to revise such estimates for the ensuing year, and the comptroller shall 
then prepare a report to the mayor of the various estimated amounts 
required in said comptroller's opinion for each executive department, 
and for other city expenses, together with an estimate of the necessary 
per cent, of taxes to be levied. The mayor shall at the next meeting 
of the common council present such report with such recommendations 
as he may see fit. It shall be the duty of the committee of finance of 



399 EXECUTIVE OFFICERS AND DEPARTMENTS. § 432 

said common council thereupon to prepare an ordinance fixing the rate 
of taxation for the ensuing year, and also an ordinance making appro- 
priations by items for the use of the various executive departments 
and other city purposes for the ensuing year. Said ordinance may re- 
duce any estimated item for any executive department, from the figure 
submitted in the report of the city comptroller, but shall not increase 
the same unless recommended by the mayor. Such appropriation or- 
dinance shall thereafter be promptly acted upon by the common coun- 
cil. If at any time after the passage of such ordinance an emergency 
shall arise for further appropriations for the use of any department as 
certified by such department as hereinbefore provided, or other pur- 
poses during the year, such additional appropriation may be made on 
the recommendation of the comptroller by a two-thirds vote of the 
council. R. S. 1894, § 3821. 

Appropriation for entertainment of Grand Army— Private subscriptions— Unex- 
pended balance. — Having been invested v^dth special authority by the legislature, the 
common council of the city of Indianapolis appropriated $75,000 out of the treasury of 
the city for the purpose of defraying the legitimate expense in the preparation for the 
reception and entertainment of the twenty-seventh national encampment of the Grand 
Army of the Eepublic. The ordinance appropriating the money created an " encamp- 
ment committee," the members of which were vested with the power of disbursing the 
funds appropriated. Before the said ordinance was passed, the president and secretary 
of the Commercial Club, an incorporated body, the primary object of which is to pro- 
mote the business and commercial interests of the city, appeared before the finance 
committee of the common council, and represented that it would be impossible to secure 
private subscriptions in a sufficient sum, and stated that if the appropriation was made 
by the city, that such appropriation should only be drawn upon to make up any defi- 
ciency after the private subscriptions, of which the Commercial Club had charge, were 
entirely exhausted, and that any unexpended balance of the fund appropriated by the 
city should be turned into the city treasury. Of the 175,000 appropriated, the " en- 
campment committee " appointed by the city turned over 135,000 to the citizens' execu- 
tive board upon an order signed by the chairman to the effect that it would be paid out 
for legitimate expenses only, and any unexpended balance remaining should be turned 
back into the city treasury. The citizens' executive board also had charge of, but kept 
in a separate account, the funds collected by the Commercial Club. After the encamp- 
ment had been held, there remained a balance of 1584.75 belonging to the city's ac- 
count, which, with some money belonging to the executive board, was turned over to 
the city treasurer. Under the facts the city had no claim to any unexpended balance 
of funds which had been collected by the Commercial Club. Lilly v. City of Indian- 
apohs, 149 Ind. 648. 

432, Contracts limited to appropriations. — 51. No executive de- 
partment, officer or employe thereof, shall have power to bind such 
city by any contract, agreement, or in any other way, to any extent 
beyond the amount of money at the time already appropriated by or- 
dinance for the purpose of such department, and all contracts and 
agreements, express or implied, and all obligations of any and every 
sort, beyond such existing appropriations, are declared to beabsolutelv 
void. R. S. 1894, § 3822. 

Void contract— Street ligiits.— Under this section a contract for street lights for rive 



§ 433 CITIES OF MORE THAX ONE HUNDRED THOUSAND. 400 

years, made by the executive department of public works, when no appropriation for 
the purpose had been made, except for a month or two in advance, is void. City of In- 
dianapolis V. Wann, etc., 144 Ind. 175. 

Eatification. — Subsequent appropriations for installments coming due on a contract 
made by city authorities in violation of a statute prohibiting contracts for which appro- 
priations had not already been made, can not operate as a ratification of the contract 
so as to make it binding. City of Indianapolis v. Wann, etc., 144 Ind. 175. 

When the method of making the contract is prescribed, and the terms in which the 
method is prescribed may be deemed director^.^, failure to follow the method prescribed 
will not always avoid the contract, nor will it be so void that it can not be ratified. But 
where the terms prescribed are mandatory or prohibitory, and much more when a vio- 
lation of the terms is made an offense against the state (see next succeeding section), a 
contract in contravention of the statute is a dead thing, incapable of having life breathed 
into it, utterly void and incapable of ratification. City of Indianapolis v. AVann, 144 
Ind. 175, 178; City of Superior v. Norton, 63 Fed. Rep. 357; Milford v. Milford, etc., 
Co., 124 Pa. St. 610, 611; Trainer v. Wolfe, 140 Pa. St. 279; Tax-payers v. Plattsburg, 
50 N. Y. Supp. 356; Merrill v. Monticello, 138 U. S. 673, 693, 694; Union School Tp. v. 
First National Bank, 102 Ind. 464; City of Superior v. Norton, 63 Fed. Rep. 357; 15 
Am. & Eng. Enc, 1102, 1103, n. 1 and cases; 1 Dillon, §§ 447, 448, 457, and notes. See 
Hill V. City of Indianapolis, 92 Fed. Rep. 467. 

433. Issuing warrants beyond appropriations — Penalty. — 52. Any 

city official who shall issue any bond, certificate or warrant for the 
payment of money which shall purport to be an obligation of such 
city, and be beyond the unexpended balance of any appropriation 
made for such purpose, or who shall attempt to bind such city by any 
contract, agreement, or in any other way, to any extent beyond the 
amount of money at the time already appropriated by ordinance for 
such purpose, and remaining at the time unexpended, shall be liable 
on his official bond to any person injured thereby, and shall be fined 
in any sum not more than one thousand dollars ($1,000), and im- 
prisoned in the county jail not more than six months, either, or both. 
R. S. 1894, § 3823. 

A. DEPARTMENT OF FINANCE. 

434. Comptroller — Appointment — Salary. — 53. The city comp- 
troller shall be at the head of the department of finance, and shall have 
an appropriate seal. He shall be appointed by the mayor. His sal- 
ary shall be two thousand dollars ($2,000), which may be increased 
by ordinance to a sum not exceeding three thousand dollars ($3,000) 
per year. R. S. 1894, § 3824. 

435. Duties of comptroller. — 54. It shall be the duty of the comp- 
troller: To prescribe the form of reports and accounts to be rendered 
to his department, and to have the inspection and revision of the ac- 
counts of all other departments and trusts. To audit the accounts of 
the several departments and trusts, and all other accounts in which 
the city is concerned, and submit annually to the council at the end 
of each fiscal year a report of the accounts of the city, under his oath, 
exhibiting the revenues, receipts and expenditures, the sources from 



401 EXECUTIVE OFFICERS AND DEPARTMENTS. § 435 

^vllich the revenues and funds are derived; which report shall be pub- 
lished in pamphlet form. To keep separate accounts for each specific 
item or appropriation made by the council to each department, and re- 
quire all warrants to state specifically against which of said items the 
warrant is drawn. Each account shall be accompanied by a statement 
in detail in separate columns of the-several appropriations, the amount 
drawn on each appropriation, the unpaid contracts charged against it, 
and the balance standing to the credit of the same. He shall not 
suffer any appropriation to be overdrawn or the appropriation for one 
item of expense to be drawn upon for any other purpose, or by any 
department other than that for which the appropriation was specif- 
ically made, except on transfers authorized by ordinances. He shall 
sign and issue all orders for money upon the city treasury, and no 
moneys shall be paid out by the treasurer except upon such order. In 
case of stated salaries fixed by law or ordinance, said comptroller shall 
issue orders therefor, but in all other cases he shall require a warrant 
to be presented to him from the head of the department under whose 
supervision the obligation has been incurred, or if not so incurred, 
then such warrant shall be drawn by the mayor. In no case shall the 
comptroller draw an order on the treasury unless there be at the^time 
money in the treasury properly applicable to the payment thereof. 
The expenditures of the comptroller must be approved in writing by 
the mayor before any order is drawn therefor. To have charge of all 
books or papers pertaining to his department or entrusted to the same, 
and to turn the same over to his successor. If any warrant presented 
to the comptroller contain an item for which no appropriation has 
been made, or there shall not be a sufficient balance of the proper fund 
for the payment thereof, or which for any other cause should not be 
approved, he shall not approve the same, and shall notif}^ the proper 
department of the facts. And if the comptroller shall approve any 
warrant contrary to the provisions hereof, he shall be individually 
liable for the amount of the same to the holder thereof, and to the ex- 
tent of his bond; his sureties shall also be liable. Whenever a warrant 
shall be presented to him, he shall have power to require evidence that 
the amount claimed is justly due, and for that purpose may summon 
before him any officer, agent, or employe of any department of the city, 
or any other person and examine him upon oath relative to such war- 
rant or claim. Such persons so summoned shall be subject to the pro- 
visions of this act, touching the examination of persons by the council, 
said comptroller having the same power as such body. To perform the 
duties elsewhere defined by this act with regard to the negotiation 
and sale of city securities, and to keep a register of all bonds of the 
city and of the transfers thereof and an account of all outstanding se- 
curities. To manage and direct the finances and accounts of the city, 
and to make investments of city funds, subject to the ordinances of 
the common council. To issue all city licenses of every nature w^iat- 
ever upon the presentation and surrender of the receipt of the treas- 

CiT. AND To.— 26 



§ 436 CITIES OF MORE THAN ONE HUNDRED THOUSAND. 402 

urer showing the payment of the license fee and to collect comptroller's 
fees as fixed by ordinance. Said comptroller shall once each week pay 
to the treasurer the amounts collected by his department for the pre- 
ceding week, specifying the source from which they have been derived, 
and the comptroller shall relinquish, in writing, to such city all fees 
which have been or may be collected. To prescribe the forms and 
methods of keeping and rendering all city accounts, the form of ac- 
counts and pay-rolls to be used in the several departments and offices, 
the manner in which all salaries shall be drav/n, and the mode by 
which all creditors, officers and employes shall be paid. All salaries 
shall be payable once in. three months. To furnish the treasurer state- 
ments of all appropriations made by the council before any warrant 
shall be drawn on account of the same, and to notify the ma^^or in case 
of any neglect or failure on the part of an}^ officer or officers author- 
ized to collect any moneys for or on account of the city, in the per- 
formance of such duty or in depositing their collections in the treasury; 
and thereupon the mayor shall suspend such officer or officers, and 
proceed against them by an action upon their official bond or other- 
wise, as he may deem best. To carefully examine tax duplicates in 
the hands of the county auditor and county treasurer, and see that the}^ 
are properly made out so far as the same relate to city taxes, and to 
see that the assessment of property is properly made out by the as- 
sessor so far as the same relates to city taxes, and to notify the treas- 
urer of any omitted property that may come to his knowledge. To 
examine the accounts of the treasurer and make an annual settlement 
with him, charging to such treasurer the amount of all taxes and other 
assessments, entered on said duplicate, in favor of such city, together 
with all penalties, interest and other sums in addition to the amount of 
such tax, which it may be the duty, according to law, of such treasurer 
to collect in behalf of the city, and to credit him with all disburse- 
ments made on account of lawful orders drawn on him by such comp- 
troller. To draw orders on the treasury for miscellaneous city ex- 
penditures, not made under the direction of any executive department, 
nor specifically fixed by law as in the case of salaries: Provided, That 
no such order shall be drawn by such comptroller, unless the money 
properly applicable thereto has been appropriated by ordinance, and 
remains unexpended, and no liability shall accrue against such city, 
nor can any officer, agent or employe of such city bind the same di- 
rectly or indirectly for any such miscellaneous expense without the 
w^ritten approval of the comptroller previously obtained and filed in the 
comptroller's office, nor in any case beyond the appropriation alread}^ 
made and remaining unexpended available for such purpose. All ob- 
ligations in contravention of the preceding provision are declared to 
be void for all purposes. R. S. 1894, § 3825. 

436. Deputy comptroller — Appointment — Salary— Powers. — 55. 
The comptroller may appoint a deput}^ for whose acts he shall be re- 
sponsible, having an annual salary of one thousand dollars, v/hich 
may be increased by ordinance to a sum not exceeding twelve hun- 



403 EXECUTIVE OFFICERS AND DEPARTMENTS. § 437 

dred dollars ($1,200). The comptroller and deputy shall have power 
to administer oaths in connection with all matters relating to said of- 
fice, for which no charge shall be made. [As amended, Acts 1893, 
p. 56. In force February 22, 1893.] R. S. 1894, § 3826. 

B. DEPARTMENT OF LAW. 

437. City attorney — Assistauts— "Appointment — Duties— Salaries.— 

56. The head of the department of law shall be the attorney and counsel 
of such city; he shall be appointed by the mayor; shall hold office as 
hereinbefore provided, and give bond with surety in the sum of five, 
thousand dollars ($5,000.00); to be approved by the comptroller. He 
shall have the management, charge and control of the law business of 
such city, and for each branch of its government, and prosecute all 
violators of city ordinances; shall be the legal adviser of all its de- 
partments and officers, shall draw up ordinances, leases, deeds, con- 
tracts or other legal papers for such city and its various departments 
when requested to do so by the proper officer; shall be the custodian 
of the papers properly appertaining to his office, and shall turn the 
same over to his successor in office. He shall conduct all legal pro- 
ceedings authorized by this act, and all appeals of every nature what- 
soever in w^hich such city or the public shall have an interest, shall 
make all searches and abstracts of "title required in opening, widening 
or changing any street, alley or public place, or required in any pub- 
lic work of any kind. He shall receive an annual salary of four thou- 
sand dollars ($4,000.00) in full for all his services, but wdiich may be 
increased by ordinance to any amount not exceeding five thousand 
dollars ($5,000.00). 

All fees, perquisites or other emoluments received by him or paya- 
ble to him, except for prosecuting violators of city ordinances, shall 
be collected by him for and in behalf of such city, a careful account 
kept theroof, and the same paid into the city treasury once a w^eek, 
said payment to be made under oath as to the amount received. Such 
attorney shall use all diligence to collect costs due such city, and all 
other fees or recoveries falling within the purview of his official duties. 
He shall appoint an assistant city attorney who shall receive an 
annual salary to be fixed by ordinance not exceeding twenty-five hun- 
dred dollars ($2,500), and also a second assistant who shall receive an 
annual salary to be fixed by ordinance not exceeding fifteen hundred 
dollars ($1,500), and also such other assistants as he may be author- 
ized to do by ordinance and no other, and shall prompt!}^ commence 
all proceedings necessary or advisable for the protection or enforce- 
ment of the rights of such city or of the public. He shall report to 
the mayor in writing all such matters as he may deem important, 
and to the department of finance all judgments for which such city 
shall be liable. No judgment against such city shall be en forcible 
except out of moneys appropriated for that purpose, but the common 
council and mayor may be compelled by mandamus proceedings to 



§ 438 CITIES OF MORE THAN ONE HUNDRED THOUSAND. 404 

levy, collect and appropriate the necessary sum for the payment of 
any judgment, in which case such legislative bodies may be sued col- 
lectively by their legal names, service of process being had on any 
member thereof, and all members shall be bound by such judgment. 
In all actions in which such city is entitled to pray an appeal, the 
same shall be granted as to such city w^ithout bond. No proceed- 
ings shall be had to enforce any judgment against such city pending 
an appeal therefrom. [As amended, Acts 1899, p. 451. In force 
March 4, 1899.] 

Powers and duties of city attorney.— Appointment, removal, etc., under general 
law of 1867, see ante, §§ 59, 59a, 96 and notes. 

Note. — Acts and proceedings of the departments and officers of the city of Indianapo- 
lis, under §§ 38, 40, 45, 56, 60, 61, 73, 77, 82, 89, 90, 91, 97, 100, 110, 114, and supple- 
mental § 136 of this act, as the same were attempted to be amended and enacted by act 
of 1895 (Burns' Supp. 1897, § 3809, et seq.'), were legalized and validated by act of 1899 
(Acts 1899, p. 449). 

Authority of city attorney. — A city attorney who is charged by statute with the duty 
to prosecute and defend all suits for and against the city, in several controversies in- 
volving the same issues, may bind the city by an agreement that all the controversies 
shall abide the result of one test case. Bank of Commerce v. City of Louisville, 88 Fed. 
Eep. 398. 

C. DEPARTMENT OF PUBLIC WORKS. 

438. Board of public works — Appointment — Salaries — Bonds. — 57. 

The department of public works shall have for its head a board of 
three members, to be appointed by the mayor, not more than two of 
whom shall be of the same political party. The mayor shall have 
the power at any time to remove any member of said board and to fill, 
by appointment, any vacancy occurring in said office. The person 
appointed to fill a vacancy shall hold the office, subject to removal by 
the mayor, until his successor is appointed by the mayor. Each mem- 
ber of said board shall receive a salary at the rate of fifteen hundred 
dollars ($1,500) per year, which may be increased by ordinance to a 
rate not exceeding two thousand dollars ($2,000), and give bonds with 
sureties in the sum of $5,000, to be approved by the comptroller. Said 
board shall choose a chairman from its own number. No member of 
said board shall have any authority to act on behalf of the same, ex- 
cept pursuant to an order of the board, regularly made at a meeting 
of the same, at which meeting a majority of the board shall have been 
present. All actions of the board shall be recorded by the clerk thereof, 
together with a record of the vote of each member, where the vote is 
not unanimous. The board shall make rules governing the time and 
place for holding regular and called meetings, and for giving notice 
thereof. R. S. 1894, § 3828. 

Board of public works — Rules. — In an action to enforce a sewer assessment lien, it 
is not necessary to allege the proper appointment or qualifications of the board of pub- 
lic works, or the adoption of rules for the conduct of their business and notice thereof, 
as required by this section. Spades v. Philhps, 9 App. 487. 



( 



405 EXECUTIVE OFFICERS AND DEPARTMENTS. § 439 

439. Clerk of board — Sjilary— Civil engineer — Appoint nieut — Sal- 
ary. — 58. Said board shall appoint a clerk at a salary of one thousand 
dollars per annum, which may be increased by the council to a sum 
not to exceed fifteen hundred dollars per annum. The mayor shall 
also appoint a city civil engineer, who shall be subject to the discre- 
tion of said board, and receive a salary of twenty-five hundred dollars 
per annum, which may be increased by the council to a sum not to 
exceed thirt3"-five hundred dollars per annum.. [As amended, Acts 
1899, p. 556. In force March 6, 1899.] 

Powers and duties of city engineer under general law of 1867, see ante^ § 91, and notes ; 
and Hirth y. City of Indianapolis, 18 App. 673. 

440, Powers of board. — 59. The board of public works shall have 
power to condemn, hire or purchase any real estate or personal prop- 
erty needed by such cit}^ for any public purpose, except when a dif- 
ferent provision for purchase is made by this act: Provided, That 
when a sum of more than two thousand dollars ($2,000) is required 
to be paid for the condemnation, hire or purchase of any real estate or 
personal property, the same shall not take place unless the condemna- 
tion, hire or purchase is specifically authorized by ordinance. To 
have charge of all property, real and personal, belonging to such city, 
and to care for the same, except where the custody of such property is 
by this act placed under different control. To design, order, contract 
for, and execute the improvement or repair of any property, real or 
personal, belonging to or used by such city, and the erection of all 
buildings for public purposes, together with all fire cisterns, pounds 
and all other structures of any nature, needed for any public purpose. 
To approve the platting of all streets and alleys in any addition to 
such city, or within the corporate limits thereof; to require tlie same 
to correspond in width, and be co-terminus with adjoining streets and 
alleys. No plat shall be entitled to record in the recorder's office in 
the county in which such city is located without such written approval 
endorsed thereon. To lay out, open, change, vacate, and to fix or 
change the grade of any street, alley, or public place within such cit}^ ' 
and to design, order, contract for, and execute the improvement or 
repair of any street, alley or public place within such city. To re- 
pair, clean, light and sprinkle any street, alley or public place within 
such city which requires the same, in the opinion of such board, said 
work to be done either by contract or otherwise, and to cause lamp 
posts or other lighting apparatus to be erected in the streets, alle3's or 
public places of such city. To lay out, design, order, contract for and 
execute the construction, alteration and maintenance of all public 
drains or sewers within such city, and all drains or sewers vritliout 
such city and within four miles thereof, which may be necessary to 
carry off the drainage of such city. To purchase or erect, by contract 
or otherwise, and operate water-works, gas works, electric light works, 
street car and other lines for the conveyance of passengers and freight, 
natural gas lines, telegraph and telephone lines, steam and power- 



§ 440 CITIES OF MORE THAN ONE HUNDRED THOUSAND. 406 

houses and lines, for the purpose of supplying such city and the sub- 
urbs thereof, or to purchase or hold a majority of the stock in corpora- 
tions organized for either of the above purposes: Provided, That none 
of the powers conferred by this paragraph shall be exercised except 
pursuant to an ordinance specifically directing the same. To contract 
for the furnishing of gas, either natural or artificial, water, steam or 
electricity, light or power, to said city or the citizens thereof, by any 
company or individual, and in such contract to fix the prices to be 
charged for the same in such city, subject to ordinances of such city in 
relation to consumption by private consumers. To design, order, con- 
tract for and execute the erection of any culvert, bridge, way, viaduct, 
tunnel or aqueduct within such city, or to enter into a contract with 
any company or individual for the joint erection and maintenance by 
such company or individual and such city, of any such structure. To 
authorize and empower by contract, telegraph, telephone, electric 
light, gas, water, steam or street car or railroad companies to use any 
street, alley or public place in such city, and to erect necessary struc- 
tures therein, and to prescribe the terms and conditions of such use, 
to fix by contract the prices to be charged to patrons: Provided, That 
such contract shall in all cases be submitted by said board to the coun- 
cil of such city, and approved by them by ordinance before the same 
shall take effect. To license the digging of any hole, or the removal 
of any material from the surface, or underneath the surface, of any 
street, alley or public place in such city; to require bonds for damages 
and for the proper replacement of the street, and to refuse any licenses 
when the public interest requires it. To direct the removal of any or 
all structures in the streets, alleys or public places of such city, and to 
remove the same at the expense of the persons maintaining the same 
on their failure to make such removal. To design, order, contract for 
and execute the erection of any levee within the limits of such city, or 
within four miles thereof. To change any water-course, natural or 
artificial, within such city, or within four miles thereof. To remove 
all dead animals, garbage, filth, ashes, dirt, rubbish or other offal from 
such city, either by contract or otherwise. To prepare a general uni- 
form plan for the drainage and sewerage of such city, and extend the 
same from time to time. To make and keep a map and record of all 
sewer, gas, water, electric w^ire conduits in such city, public and pri- 
vate, showing the size, depth, inclination, location and date of con- 
struction of the same, and to record therein every change which may 
be made in the same, together with all new connections and improve- 
ments. To discharge all other duties of an executive character not 
falling within the sphere of some other executive department, or im- 
posed upon this department by ordinance. To fill up or drain any 
section of ground within such city, or within four miles from its cor- 
porate limits, whenever water has or may become so stagnant or 
noxious as to be injurious to the public health and comfort, at the 
owner's expense, the same to be a lien and collectible by foreclosure: 
Provided, That not to exceed ten (10) per cent, of the value of such lot 



407 EXECUTIVE OFFICERS AND DEPARTMENTS. § 440 

or land, as valued and assessed upon the tax duplicate for city pur- 
poses, shall be expended in filling up or draining the same in any one 
year. To construct urinals and fountains in public places. To fix, 
establish, change and keep a record of the grades of all streets, alleys 
and sidewalks. R. S. 1894, § 3830. 

PoAver over streets, alleys and bridges— Duties— Liabilities— Obstructions— Neg-Ii- 
g-ence— Actions— Damages.— See ante, § 218 and notes. 

Plats—Dedication of streets— Prescription, etc.— See ante, § 218 and notes. 

Opening' and vacation of streets— Eminent domain, etc.— See ante, § 218 and notes. 

Improvement of streets— Fixing" and chang-ing* grade.— See ante, §§ 91, 218, 219, 
post, §§ 1107-1135 and notes. 

Sewers— Drains, etc.— See ante, §124, clauses 26 and 43 and notes, and §§127 and 
183 and notes; also, post, § 1090, et seq., and notes. 

Corporations occupying- streets under municipal franchises— Duties and liabili- 
ties, etc. — See ante, § 218 and notes. 

Water-works— Contracts, ordinances, etc.— See ante, § 124, clause 26 and note, and 
clause 43 and notes, and § 138, et seq. ; post, §§ 1061-1089, and 1372, et seq. 

Public lig'hts— Gas and electricity.— See aiue, § 124, clause 28 and notes, and post, 
§ 1136, et seq. and notes ; also, post, §§ 1360, 1371, et seq, 

Railroads— Occupation of streets, etc.— See ante, §218 and notes, and post, §1316, 
€t seq. and notes. 

Street car companies— Occupation of streets, etc. — See ante, § 218 and notes, and 
post, §1332 and notes. 

Teleg-raph and telephone companies.— See ante, §§ 1 and 4 and notes, and § 218 and 
notes ; and as to telephone companies, post, § 1380 and notes. 

Municipal property— Purchase— Sale— Control of, etc.— See ante, § 124 and notes. 

Streets— Eeg-ulation of use— Market wag-on— License— Non-resident— Reasonable- 
ness of toll. — A non-resident of a city may be lawfully compelled to pay a license for 
driving a market wagon upon its streets, when no discrimination is made against him 
on account of his non-residence. The fact that some revenue arises to a city from fees 
collected from licenses for the use of streets by vehicles, and that it is applied to the 
repair of the streets, does not render a license of three dollars per year for a one-horse 
market wagon, unreasonable. Tomlinson v. City of Indianapolis, 144 Ind. 142. 

The power to license, and to exact a reasonable license fee, for the use of streets and 
alleys by vehicles, is within the power of a municipality, under a statute giving power 
to regulate such use. The police power and not the taxing power is exercised in licens- 
ing the use of vehicles on streets, and the license fee in such case is a toll for the use of 
the streets, and not a tax on personal property. Tomlinson v. City of Indianapolis, 144 
Ind. 142. 

Town plat— Indianapolis— Streets, etc— The statute of 1831, entitled "an act to 
authorize the agent of state for the town of Indianapolis, to lay off the lands belonging 
to the state " etc., is a public act; and it is therefore no objection to the admission, as 
evidence, of the plat of that town, executed, etc., as the said act prescribes, that the act 
is not pleaded. The above named statute, by causing the survey, etc., of the town of 
Indianapolis to be made and declaring the map of the same to be a public record, con- 
stitutes, of itself, the streets and alleys in the town to be highways. West v. Blake, 4 
Blackf. 235. 

Fixing* and chang-ing" g-rade of street, etc.— City not liable.— The act of :\Iarch 6, 
1891, commonly designated as the charter of the city of Indianapolis, repeals § 3508. 
R. S. 1894, as to cities of more than one hundred thousand population, and provides for 
no liability for damages for changing the grade of a street after it has once been estab- 
lished, nor does it make it obligatory upon the city to have such damages assessed and 
tendered. Hirth v. City of Indianapolis, 18 App. 673. 



§'441 CITIES OF MORE THAN ONE HUNDRED THOUSAND. 408 

Statute construed— street railwaj' companies.— This act practically established a 
new system, and vested the whole power of the legislature over street railway compa- 
nies in the board of public works, subject to the approval of the common council; but 
such act should not be construed retrospectively or to affect contracts entered into prior 
to its passage. City Eailwav Co. v. Citizens' R. Co., 166 U. S. 557. 

Removal of g-arbag-e— v.^st.— This section confers on the board of public works 
power to fix the price for the removal of garbage. Walker v. Jameson, 140 Ind. 591. 

441. Work, how to be done. — 60. It shall be the duty of said 
board of public works whenever any work or improvement of any 
character ordered or undertaken by it, is payable out of the general 
treasury of such city from funds belonging to such city, or payable in 
whole or in part by assessments made for that purpose upon the prop- 
erty benefited thereby, to cause said work to be done either by inde- 
pendent contract or by employes of said board as said board may 
deem best: Provided, That in cases where such w^ork is done by inde- 
pendent contract, such contract shall provide and stipulate un- 
der proper penalty that such contractor shall give residents of said 
city and county wherein it is located the preference as employes. [As 
amended, Acts 1899, p. 451. In force March 4, 1899.] 

442. Drawings for work — Notice of letting — Coilusiou. — 61 . When- 
ever said board shall order any v^^ork to be done, which either by order of 
said board or according to law, it is to be performed by independent 
contract, said board shall prepare and place on file in the ofiice of said 
department complete drawings and specifications of said w^orks. 
Thereupon said board shall cause a notice to be published in one daily 
or weekly newspaper of general circulation, published in such city, 
once each week for two weeks, informing the public and contractors 
of the general nature of the work and of the fact that the draw- 
ings and specifications are on file in such office and calling for 
sealed proposals for such w^ork by a day not earlier than ten (10) 
days after the first of said publications. Said board shall require 
each bidder or firm of bidders to file with said board an affidavit that 
such bidder or bidders have not directly or indirectly entered into any 
combination, collusion, undertaking or agreement with any other 
bidder or bidders to maintain the price of any work or contract or to 
prevent an}^ other bidder or bidders from bidding or to induce any 
bidder or bidders to refrain from bidding on any contract or work, 
and that such bid is made without regard or reference to any other 
bid or bids, and w^ithout any agreement, understanding, or combina- 
tion, either directly or indirectly, with an}^ other person or persons 
with reference to such bidding in any wa}^ or manner whatever, and 
if after any contract has been let by said board it shall be made to 
appear to said board that the successful bidder has been guilty of any 
collusion, combination, understanding or agreement, as defined in 
said affidavit, such bidder shall forfeit said contract and such work 
shall be relet by said board. The board may in its discretion fix a 
later day for receiving such sealed proposals, provided such date shall 
be mentioned in each of such notices. Said board shall, if a satisfac- 



409 EXECUTIVE OFFICERS AND DEPARTMENTS. § 443 

tory bid be received, let such contract to the lowest and best bidder. 
Such board may b}^ order impose further conditions upon bidders with 
regard to bond and surety guaranteeing the good faith and responsi- 
bility of such bidders or insuring the faithful completion of such 
work according to contract or for keeping the same in repair for any 
length of time, or for any other purpose. [As amended, Acts 4899, 
p. 451. In force March 4, 1899.] 

Acts and proceedings of the departments and officers of the city of Indianapolis, un- 
der §§ 38, 40, 45, 56, 60, 61, 73, 77, 82, 89, 90, 91, 97, 100, 110, 114, and supplemental 
§sl86 of this act, as the same were attempted to be amended and enacted by act of 1895 
(Burns' Supp. 1897, §3809, etseq.), were legalized and validated by act of 1899 (Acts 
1899, p. 449). 

4:43. Expenses, how paid. — 62. All the expenses incurred or au- 
thorized by such board of public works shall be payable out of the 
general funds of such city appropriated to the use of such board and 
available for the particular purpose, except where this act specifically 
directs that the same is to be paid for by assessments against property 
holders. R. S. 1894, § 3833. 

Condemnation. 

444. Condemnation of property.— 63. Whenever the board of 
public works shall desire to appropriate or condemn, for the use of 
such city, any property, real or personal, or to open, change, lay out 
or vacate any street, alley or public place within such city, including 
proposed street or alley crossings of railways in cases where the pro- 
posed street or alley is to cross a railway, it shall adopt a resolution to 
that effect, describing the property which may be injuriously or bene- 
ficially affected, and shall cause notice of such resolution to be pub- 
lished in some daily newspaper of general circulation in such city 
once each week for two weeks. Such notice shall name a date, after 
the last day of publication, at which such board will receive or hear 
remonstrances from persons interested in or affected thereby. Said 
board shall consider such remonstrances, if any, and thereupon take 
final action, confirming, modifying or rescinding their original reso- 
lution. Such action shall be final and conclusive upon all persons. 
R. S. 1894, § 3834. 

For decisions on eminent domain, opening and vacation of streets, etc., under the 
general law of 1867, see ante, § 218, et seq., and § 224, et seq. and notes. See, also, con- 
stitutional law, a7ite, §§4 and 11 and notes. 

445. List of owners of property taken. — 64. Upon the final order 
being made, as provided in the preceding section, said board shall 
cause to be prepared a list or roll of all the owners or holders of prop- 
erty and of valuable interests therein, sought to be taken or to be in- 
juriously affected, and in the case of opening, laying out, change or 
vacation of an}^ street, alley or public place in such city, or within 
four miles thereof, a list of the owners or holders of property, or of 



§ 446 CITIES OF MOKE THAN 0>;E HUNDRED THOUSAND. 410 

valuable interests therein to be beneficially affected by such work. 
Such list shall not be confined to the owners of property along the 
line of proposed work, but shall extend to and include all property 
taken, benefited or injuriously affected. In addition to such list of 
names, the same shall show, with reasonable certainty, a description 
of such property to be taken or affected, either beneficially or injuri- 
ously, belonging to such persons. No greater certainty in names or 
descriptions shall be necessary to the validity of any assessment than 
is required in the assessment of taxes. R. S. 1894, § 3835. 

446. Assessment of damages and benefits.— 65. Upon the com- 
pletion of such list, said board shall proceed to award the damages 
sustained and to assess the benefits accruing to each piece of property 
on said list. When such assessments or awards are completed, said 
board shall cause a written notice to be served upon the owner of each 
piece of property, showing the amount of such assessment or award, 
by leaving a copy of the same at his last usual place of residence, in 
such city, or by delivering a copy to such owner personally. If such 
person be a non-resident, or his residence shall be unknown, then he 
shall be notified by publication in some daily newspaper of general 
circulation in such city once each week for three successive weeks. 
Such notices shall also name a day, not earlier than ten (10) days 
after service of notice or after the last publication, as the case may be, 
on which said board shall receive or hear remonstrances from persons 
with regard to the amount of their respective awards or assessments. 
Persons not included in such list of assessments or awards, and claim- 
ing to be entitled to the same, shall be deemed to have been notified 
of the pendency of the proceedings bv the original notice of the reso- 
lution of the board. R. S. 1894, § 3836. 

Statute construed— Notice— Street improvements.— The provisions of this section 
relating to notice in condemnation proceedings do not apply to notice in street improve- 
ment proceedings. Spades v. Phillips, 9 App. 487. 

447. Minors and insane persons. — 66. In case any person having 
any interest in land affected by such proceedings shall be of unsound 
mind or an infant, said board of public works shall certify the same 
to the city attorney, and said city attorney shall forthwith apply to the 
proper court and secure the appointment of a guardian for such infant 
or person of unsound mind; and thereupon said board shall give no- 
tice to such guardian, who shall thereupon appear and protect the in- 
terest of his ward: Provided, that if such infant or person of unsound 
mind already have a guardian, such notice may be served on such 
guardian. The requisites of notice to such guardians shall be the 
same as in the case of other notices. If there be a defect in the pro- 
ceedings with respect to one or more interested persons, the same shall 
not affect such proceedings except so far as it may touch the interest 
or property of such person or persons, and shall not avail any other 
person concerned therein. In case of such defect, supplementary pro- 
ceedings of the same general character as those heretofore prescribed 
may be had in order to supply the same. R. S. 1894, § 3837. 



411 EXECUTIVE OFFICERS AND DEPARTMENTS. § 448 

448. Eemoustraiice — Appeal. — 67. Any person notified, or deemed 
to be notified, under tlie preceding sections, may appear before such 
board on the day fixed for hearing such remonstrances with regard to 
a\Yards and assessments, and remonstrate against the same. After 
such remonstrances shall have been received, said board shall there- 
upon either sustain or modify the awards or assessments in the cases 
of such remonstrances, but in no other case. Any person thus re- 
monstrating who is aggrieved by the decision of' the board, may, within 
twenty days (20) thereafter, take an appeal to the circuit or superior 
court in the county in which said city is located. Such appeal shall 
only affect the assessment or award of the person appealing. R. S. 
1894, § 3838. 

449. Appeal, liow taken — TriaL— 68. Such appeal may be taken 
by filing an original complaint in such court against such city within 
the time named, setting forth the action of the said board of public 
works in respect to such assessment, and stating the facts relied upon 
as showing an error on the part of such board. Such court shall re- 
hear the matter of such assessment de novo, and confirm, lower or in- 
crease the same as may seem just. In case such court shall reduce 
the amount of benefit assessed against the land of such property- 
holders, or increase the amount of damages awarded in his favor, the 
plaintiff in such suit shall recover costs, otherwise not. The judg- 
ment of such court shall be final, and no appeal shall lie therefrom. 
R. S. 1894, § 3839. 

450. Roll of assessments — Liens. — 69. On the completion of such 
assessment-roll by said board of public works, the same shall be forth- 
with delivered to the department of finance, and from that time the 
respective amounts of benefits therein assessed shall severally be liens, 
superior to all other liens except taxes, against the respective lots or 
parcels of land upon which they are assessed. Said department of 
finance shall at once prepare a duplicate of said assessment-roll of 
benefits, the same to be known as the local assessment duplicate, and 
deliver the same to the treasurer. The duties of the treasurer and of 
the department of finance in respect thereto shall be the same as are 
hereinafter more specifically prescribed with regard to assessments for 
street improvements. R. S. 1894, § 3840. 

451. Assessments, when due — Collection. — 70. Said assessments 
of benefits shall be due and payable to the treasurer from the time of 
the delivery of said assessment duplicate to said treasurer. If not paid 
within sixty (60) days thereafter, the said city by its attorney shall 
proceed to foreclose said liens in a court of competent jurisdiction as 
mortgages are foreclosed, with similar rights of redemption, and 
have the same sold to pay such assessments. Such city shall recover 
costs, with a reasonable attorney's fee, and interest from the expira- 
tion of the sixty (60) days hereinbefore allowed for payment, at the 
rate of six per cent. (6 per cent. ) per annum. In all cases where the 
party against whom the assessment is made is a resident of such city, 
demand for the payment of the same shall be made by delivering to 



§ 452 CITIES OF MORE THAN ONE HUNDRED THOUSAND. 412 

hiii'i personally, or leaving at his last and usual place of residence, a 
notice of such assessment and demand for payment. R. S. 1894, 
§ 3841. 

Statute construed— Notice— Demand— Street im]3rovements. — The provisions of 
this section relating to notice of and demand for the paj^ment of assessments do not 
apply to street improvement proceedings. Spades v. Phillips, 9 App. 487; Sloan v. 
Faurot, 11 App. 689; Myers v. Indianapolis, etc., R. Co., 12 App. 170. But as to notice 
before suit see amendment of 1895, Barns' Supp. 1897, § 3853 {post, §463). 

Demand is necessary before bringing action upon an assessment in condemnation 
proceedings. Spades v. Phillips, 9 App. 487; Myers v. Indianapolis, etc., R. Co., 12 
App. 170. 

Assessments. — In condemnation proceedings assessments are due and payable to the 
treasurer from the time of the delivery of the assessment duplicate to the treasurer. 
Spades v. Phillips, 9 App. 487; Myers v. Indianapolis, etc., R. Co., 12 App. 170. 

452. What damages paid by city. — 71. Said board of public works 
shall have power to determine what, if any, part of the damages awarded 
shall be paid out of funds appropriated for the use of such board by 
the common council: Provided, That not more than $2,000 in dam- 
ages shall be paid out of the city funds for any improvement or con- 
demnation unless pursuant to an ordinance appropriating for the spe- 
cific improvement or condemnation. All benefits assessed and collected 
by the treasurer shall be subject to draft, in the usual manner, upon 
certificate by the board of public v^^orks in favor of persons in whose 
favor damages have been awarded. An}^ surplus remaining above 
actual awards shall belong to such city. Said board may delay pro- 
ceedings until such benefits have been collected. R. S. 1894, § 3842. 

453. Certilicates for damages. — 72. It shall be the duty of the 
board of public works, upon the completion of their award of damages, 
or whencA^er any time for delay as above mentioned shall have expired, 
to make out certificates for the proper amounts and in favor of the 
proper persons, upon the presentation of which to the head of the de- 
partment of finance such person shall be entitled to a warrant on the 
city treasury. Such certificates or vouchers shall, whenever practica- 
ble, be tendered actually to the persons entitled thereto, but where 
this is impracticable the same shall be kept for such person in the 
office of said board of public works, and the making and fixing of 
such certificate shall in all cases be deemed to be valid and effectual 
tender to the person entitled thereto, and the same shall be delivered 
to him on request. In case of a dispute, or doubt as to which of the 
various persons said money shall be paid, said board shall m^ake out 
such certificate in favor of the city attorney for the use of the persons 
entitled thereto, and said attorney shall thereupon draw the money 
and pay the same into court in a proper proceeding, requiring the 
various claimants to interplead and have their respective rights de- 
termined. In any case where an injunction is obtained because dam- 
ages have not been paid or tendered, said board may tender such 
certificate for the amount thereof with interest from the time of entry 
upon the property, if any has been made, and all accrued costs, and 



413 EXECUTIVE OFFICEIIS AND DEPARTMENTS. § 454 

thereupon the injunction shall be dissolved. The pendency of an ap- 
peal shall not affect the A^alidity of a tender made under this section, 
but such city shall be entitled to proceed with its appropriation of the 
property in question. R. S. 1894, § 3843. 

454. Order — Petition for improvement — Notice — Kemonstrance — 
Appraisement. — 73. Whenever the board of public works shal] order 
the improvement of any street, alley, sidewalk or other public place 
in such city, in whole or in part, it shall adopt a resolution to that 
effect, setting forth a description of the place to be improved, and full 
details, drawings and specifications for such work. Notice of such 
resolution shall be published, remonstrances heard, said original reso- 
lution modified, confirmed or rescinded in the same manner as here- 
inbefore more specifically provided by this act with regard to the con- 
demnation of property and the opening of streets. Provided, however, 
That if at any time, on or before the day appointed for modifying, 
confirming or rescinding said resolution there shall have been filed in 
the office of said board of public works, a petition or petitions in writ- 
ing of resident freeholders upon such street or alley sought to be im- 
proved, requesting that said street or alley be paved with any certain 
kind of the accepted kinds of modern city pavement, then the board 
of public works shall not have the power or authority to pave said 
street or alley, or any part thereof, with another kind of material 
without the same is specifically ordered by an ordinance passed by a 
two-thirds vote of the council of said city. If several such petitions 
shall have been filed in the office of said board of public works at 
such time, each requesting the said street or alley be paved with a 
different kind of material, then the board of public works shall grant 
the petition upon which is the names of the largest number of resi- 
dent freeholders on the street or alley to be improved, and the said 
board of public works shall not have the power or authority to pave 
such street or alley, or any part thereof, with another kind of mate- 
rial, unless the same is specially ordered by an ordinance passed by a 
two-thirds vote of the council of said city. If such original resolu- 
tion be confirmed or modified it shall be final and conclusive on all 
persons, unless within ten days thereafter one-half of the resident 
freeholders upon such street or alley, or proposed improvement, re- 
monstrate against such improvement. In case of such remonstrance 
the improvement shall not take place, unless specifically ordered by 
an ordinance within sixty days thereafter passed by a two-thirds vote 
of the council and approved by the mayor. Provided further, That 
before any street, alley, or other public place shall be improved, and 
before a contract is let for such improvement, it shall be the duty of 
the board of public works to have the property abutting on the street, 
alley, or public place, or any part thereof proposed to be improved, 
and which is liable for such improvement, appraised by three disin- 
terested resident freeholders of the city wherein such property is lo- 
cated, which appraisers shall be appointed bv said board of public 
works, and the cost of which appraisement shall be added to the cost 



§ 455 CITIES OF MORE THAN ONE HUNDRED THOUSAND. 414 

of sucli improvement, which said appraisement shall show the value 
of such ahutting property, exclusive of the improvements thereon, and 
shall be filed in the office of the board of public w^orks. No improve- 
ment on any street, alley, or other public place, shall be made or or- 
dered which, when completed, is to cost more than twentj^-five per 
cent, of such aggregate appraised value of the property abutting on 
such street, alley, or other public place, or part thereof proposed to be 
improved, as shown by the appraisement hereinabove provided for. 
[As amended, Acts 1899, p. 399. In force March 4, 1889.] 

Municipal powers over streets, duties and liabilities, improvement of streets, etc., un- 
der the general law of 1867, and amendatory and supplemental laws, see ante, §§ 218- 
223 and notes, and posi, §§1107-1135 and notes. 

'^Resident freeholders "—Who are.—" Resident freeholders " within the meaning 
of this section means resident freeholders upon the street, and not simply residents of 
the city, owning property on the street. Kirland v. Board, etc., 142 Ind. 123. 

455. Cost of improyemeiits — ImproTement of one side of street or 
sidewalk, etc. — Cost — Apportionment. — 74. If said board shall 
finally order such improvement and shall advertise for bids and let the 
contract for the same, the cost of any street or alley improvements 
shall be estimated according to the whole length of the street or alley, 
or so much thereof to be improved as is uniform in the extent and 
kind of the proposed improvements per running foot, and the total 
cost thereof, exclusive of one-half the cost of street and alley intersec- 
tions, shall be apportioned upon the lands or lots abutting thereon. 
The remaining one-half cost of street and alley intersections shall be 
apportioned upon the lands or lots abutting on the street or alley in- 
tersecting the street or alley under improvement for a distance to the 
street line of the first street intersecting or extending across the said 
intersecting street or alley in either direction from the street, or alley 
improved: Provided, That in case of intersections with diagonal 
streets or avenues the remaining one-half cost of each intersection 
shall be apportioned on the lands or lots abutting on each of the inter- 
secting streets for a distance to the street line of the first street inter- 
secting or extending across each of said intersecting streets in each 
direction from the street improved. Should a street or alley enter 
into and not cross the street or alley under improvement, then the assess- 
ment for the cost of one-half of said entering street or alley, measured 
to the center line of the street or alley under improvement, shall be 
made on the lots or lands abutting on said entering street or alley, for 
a distance to the street line of the first street intersecting or extending 
across the said intersecting street or alley, and such last named 
assessment shall be made pro rata upon the lots or lands abut- 
ting on said street or alley. Provided, however, That if it may be 
deemed necessary by the board of public works to improve only a part, 
or one side of any street or sidewalk, or other public place in such 
city, then one-half of the cost of such improvement shall be assessed 
against and paid by such city, and the remaining one-half of the cost 
thereof shall be assessed against the lands or lots abutting upon and 



415 EXECUTIVE OFFICERS AND DEPARTMENTS. § 455 

adjacent to such half or side of the street or alley so to be improved, 
as now provided by law: Provided, also, however y That when the 
board of public works orders the improvement of any sidewalk, the 
cost of the same shall be estimated according to its whole length, in- 
cluding the street and alley intersections, and shall be apportioned 
upon the lots or lands abutting thereon. Such assessments shall be 
made without regard to the assessment for taxation, as hereinafter pro- 
vided. Such city shall be liable to the contractor for the contract price 
of such improvement to the extent of the moneys actually received by 
such city from the assessments for such improvements hereinafter pro- 
vided for, and the owners of property bordering on such street or alley shall 
be liable to the city for their proportion of the cost, exclusive of one-half 
the cost of street or alley intersections, in the ratio of the front line of 
their land or lots, whether platted or not, owned by them, to the 
whole cost of the improvements for that part of the said street or alley on 
which said lands or lots are located, and which is uniform in extent 
and quality of improvement, and the owners of lots or lands on the 
streets or alleys intersecting or entering into such street or alley shall 
be liable to the city for their proportion of the cost of improving the 
one-half of the street or alley intersections, in the proportion that their 
front line on said street or alley bears to the sum of the length of the 
front lines of said lots or lands abutting on said street or alley for a 
distance, as provided above, from the street or alley under improve- 
ment. Said city shall have separate and several liens upon such 
lands or lots from the time the contract for such improvement is finally 
let, for the respective assessments against each lot or parcel of land. 
[As amended. Acts 1899, p. 556. In force March 6, 1899.] 

Cost of improvement — Assessment. — In a case of ordinary street improvement only 
half the cost of such improvement, exclusive of one-half the cost of street and alley in- 
tersections can be legally assessed against the abutting land on one side of the street. 
Drake v. Grout, 21 App. 534. 

Sewer— When part of streetimprovement— Assessments.— Drains or sewers, when 
necessary for the purpose of carrying off surface water from the street, may be con- 
structed for such purpose as a part of the paving improvement of the street, and where 
such drain or sewer is a necessary part of the street improvement, and is not to be used 
to drain the abutting property, the cost thereof may be included in the street improve- 
ment assessment, and need not be assessed according to the benefits or area of the 
lands affected as drainage sewers as such are required to be assessed. Kirland v. Board, 
etc., 142 Ind. 123. 

Alley— Assessment— Statute construed— Constitutional.— A lot abutting upon an 
alley intersecting a street improved between the latter and the next parallel street is 
assessable under the provisions of this section, that half the cost of street and alley in- 
tersections shall be apportioned upon the lots abutting upon the intersecting streets or 
alley to the first street parallel to the street or alle}^ improved, although between it and 
the street improved the alley is intersected by an alley wide enough to make a street in 
some cities. A statute can not be held unconstitutional merely because it is unjust. 
Praigg v. Western, etc., Co., 143 Ind. 358. 

City's liability, secondary. — Under the similar provisions of the " Barrett law." the 
city's liability is but secondary, and arises only when it has sold bonds, collected assess- 
ments, or otherwise realized the amounts owing from the property benefited, and the 



§ 456 CITIES OF MORE THAN ONE HUNDRED THOUSAND. 416 

contractors have not been paid. Porter v. City of Tipton, 141 Ind. 347; Myers v. In- 
dianapolis, etc., R. Co., 12 App. 170. 

Public property — Liability. — A municipal corporation is liable for its proportion of 
the cost of local improvements assessed against it, even though the statute exempts 
public property from taxation. Warner v. City of New Orleans, 87 Fed. Rep. 829. 

456. Lots liable to assessment— Liens — Sales — Redemption. — 75. 

Lots or lands bordering on such street or alley shall be assessed and 
liable to the payment of such assessment primarily, and if not suf- 
ficient to pay for the same, then the lots or land shall be liable for a 
distance back from the front line along such street or alley of fifty (50) 
feet, whether the same shall be owned by the same or different per- 
sons. In case said fifty (50) feet shall not sell for enough to pay 
such assessment, then the ground for a distance of one hundred (100) 
feet farther back shall be liable to sale; and in case of unimproved 
lands or unplatted ground, if said one hundred and fifty (150) feet 
fail to sell for enough to pay the assessment, the whole of such land 
shall be liable to sale. This section shall be deemed to include the 
assessment, principal and interest, together with costs of foreclosure 
and a reasonable attorney's fee. . The lien of the same shall have pre- 
cedence over all liens except taxes. In all suits brought to foreclose 
such liens the plaintiff shall recover the amount of the assessment, 
principal and interest, together with a reasonable attorney's fee, and 
the court shall order that sale shall be m.ade without relief from valua- 
tion or appraisement laws. The sheriff shall make sale without relief 
from valuation or appraisement laws as lands are sold upon execution, 
and within five days after such sale, shall execute a certificate to the 
purchaser, which certificate shall vest title in the purchaser on the 
delivery thereof subject only to the right to redeem as herein pro- 
vided. Suits to foreclose may be brought by any contractor entitled 
to enforce any liens, or any assessment or assessments, against a per- 
son or persons who have made default in payment thereof, or by his 
assignee. No sale shall be ineffective because of any irregularity or 
error or mistake of any officer in making the same, unless it be made 
to appear that such error or irregularity substantially prejudiced the 
property owner. Foreclosure suits may be instituted for the enforce- 
ment of assessments and liens as herein provided by the holder of any 
bonds or coupons in cases where bonds are issued in anticipation of 
the collection of assessments against a party or parties in default, for 
the collection of such bonds or coupons and the enforcement of the 
lien'or assessment securing the same, as well as by any contractor or 
his assignee where no bonds are issued. In such foreclosure suits no 
defense shall be allowed upon any irregularity in the proceedings 
making, ordering or directing such assessment,- nor shall any 
question as to the propriety or expediency of any improvement or 
work be therein made. A property owner w^ho has not, or prop- 
erty owners who have not, signed a waiver or exercised or claimed 
the option to pay in installments, may however contest the amount of 
his or their assessment, but where a property owner or property 



417 EXECUTIVE OFFICERS AND DEPARTMENTS. § 457 

owners licis or have exercised the option to pay in installments and 
has or have signed a waiver or exercised the option to pay in install- 
ments such property owner or owners shall be concluded thereby and 
shall not be permitted to set up any defense whatsoever. It shall not 
be necessary in any such foreclosure suit or suits to set forth or refer 
to the proceedings at length or specifically, but it shall be sufficient to 
state in such complaint the day on which the contract was finally let, 
the name of the street or highway improved, the amount and date of 
the assessment, that the assessment is unpaid, and a description of 
the lot or property upon which the assessment was levied. A prop- 
erty owner or property owners shall have one year from the day of 
sale in which to redeem therefrom, and shall be entitled to redeem 
from such sale upon paying principal, interest and costs of the judg- 
ment together with eight per centum per annum interest thereon. If 
no redemption is made, then, and in that event, the sheriff shall ex- 
ecute a deed to the purchaser whicli deed shall relate back to the final 
letting of the contract and shall be paramount to all liens, claims and 
interests of every nature whatsoever, except liens for taxes. It is 
hereby declared that the provisions hereof are intended to and do give 
a remedy to all persons, contractors, assignees and bond or coupon- 
holders for the enforcement or collection of claims and liens for as- 
sessments for street improvements, the construction of sewers or drains 
under this act or any acts in relation thereto governing cities of more 
than one hundred thousand inhabitants, and do regulate and provide 
for matters of procedure and things appertaining thereto. No mistake 
in the description of property or in the name of the owner, shall 
vitiate such assessments or liens. If before ordering such improve- 
ment any land or lots have already an improvement in front of them 
conforming to the general plan, said board shall make an allowance 
to said owner thereof, to be deducted from his assessment and from 
the total amount of the contract price. [As amended, Acts 1895, p. 
384. In force March 15, 1895.] Burns' Supp. 1897, § 3846. 

Amount of assessment— Contest of.— Where the property owner has not signed any 
waiver or exercised or claimed the option of paying the assessment in installments, he 
may contest the amount of the assessment. Drake v. Grout, 21 App. 534. 

Complaint — Exhibit. — A diagram filed with the complaint as an exhibit to show lo- 
cation and direction of certain work with reference to the lot is not the foundation of 
an action to foreclose an assessment lien, and is not made a part of the complaint by 
attaching it thereto. Drake v. Grout, 21 App. 534. 

Complaint— Averments— Defense.— A complaint for the foreclosure of a street im- 
provement assessment lien is not bad for failure to aver that no improvement conform- 
ing the general plan had already been made. Whatever benefit might be derived from 
this fact is available only by defense. Spades v. Phillips, 9 App. 487. 

Sprinkling- assessment lien.— A sprinkling contractor has a lien on property 
assessed for sprinkling, including interest, cost and reasonable attorney's fees. Palmer 
v. Nolting, 13 App. 581. 

457. Payment by installments, — 76. Whenever said board of pub- 

CiT. AND To.— 27 



§ 458 CITIES OF MORE THAN ONE HUNDRED THOUSAND. 418 

lie works shall order the improvement of any street or alley, as pro- 
vided in the preceding sections, the assessment for such improvement 
may, at the option of each property-holder, be payable in ten (10) an- 
nual installments, as follows: Ten (10) per cent, of the principal, to- 
gether with all accrued interest on the entire assessment on or before 
the third Monday of April next succeeding the allowance of the final 
estimate on such work by said board, except where such estimate has 
been made between March 15 and October 1, of any year, in which 
case such first installment shall be payable on the first Monday of No- 
vember next succeeding such estimate. The next payment on said as- 
sessment shall be six (6) months' interest on the unpaid principal, 
payable at the date for the general payment of taxes, either spring or 
fall, as the case may be, next after the first installment on such assess- 
ment falls due. The next payment on said assessment shall be ten 
(10) per cent, of the original principal and six (6) months' interest on 
the unpaid principal, payable on or before the date for the general pay- 
ment of taxes, spring or fall, as the case may be, accruing one year 
after the first installment was payable, and so on, thereafter ten (10) 
per cent, of the original principal with six months' interest on the un- 
paid principal once each year, and six months' interest in alternate 
turn with each annual payment of principal and interest until the en- 
tire principal and interest has been paid. Interest not exceeding six 
(6) per cent, shall be specified by said board in the resolution for im- 
provements, and shall commence from the date of the allowance of 
such final estimate. R. S. 1894, § 3847. 

458. Assessment roll — Contents — Affidavit of contractor. — 77. In 
making assessments against each lot or parcel of land, said board of 
public works shall, as soon as any contract has been let for the improve- 
ment on any street or alley, make out an assessment roll with names of 
property holders and descriptions of the property adjoining the place 
of such proposed improvement. Said roll shall also have set opposite 
each name and description the total pro rata assessment against each 
piece of property. When completed said assessment roll shall be de- 
livered to the head of the department of finance. 

Before the said board shall approve and accept the work under any 
contract and allow a final estimate therefor, the contractors who have 
performed such work shall file with said board an affidavit of some 
one or more persons having knowledge of the facts, that all work done 
under such contract and all materials used are of the character, kind, 
quantity and quality required by the specifications on which such 
contract was let and that said work has been done in conformity with 
said contract and specifications and according to the directions of said 
board and the city engineer. [As amended, Acts 1899, p. 451. In 
force March 4, 1899.] 

Note. — Acts and proceedings of the departments and officers of the city of Indianap- 
ohs, under §§ 38, 40, 45, 56, 60, 61, 73, 77, 82, 89, 90, 91, 97, 100, 110, 114 and supple- 
mental § 136 of this act, as the same were attempted to be amended and enacted by act 
of 1895 (Bums' Supp. 1897, § 3809, et seq,), were legalized and validated by act of 1899 
(Acts 1899, p. 449). 



-119 ' EXECUTIVE OFFICERS AND DEPARTMENTS. § 459 

Assessment roll as exhibit— Foreclosure.— In an action to foreclose a street improve- 
ment lien, a copy of the assessment roll, or at least that portion of it which relates to 
the defendant's property-, should be made an exhibit of the complaint, to make the 
complaint sufficient on demurrer or on an appeal from judgment by default. Sloan v. 
Faurot, 11 App. 689. 

4:59, Improvement assessments — Duplicate— Payment — Notice to 

delinquents. — 78. Whenever the board of public works shall approve 
and accept the entire work under any contract and allow a final esti- 
mate therefore [therefor], it shall be the duty of the department of 
finance forthwith to deliver to the treasurer a certified copy of the as- 
sessment roll. Such duplicate assessment roll shall be known as the 
local assessment duplicate, and shall be appropriately prepared show- 
ing the amount due on each piece of property, if paid in cash within 
the time limited, together with necessary columns in which such as- 
sessment shall be extended, showing the amount of each installment 
and when payable, whenever the same shall be paid in installments, 
together with the interest due at each spring and fall payment of taxes 
until the same shall be fully paid. Said book shall also have appro- 
priate columns in which payments may be properly credited, and 
also a place for the satisfaction of the lien by the treasurer. All as- 
sessments, whether payable in installments or not, shall be payable to 
the treasurer, whose duty it shall be to receive the same and give 
proper receipts therefore [therefor], and enter proper credit and satis- 
faction in said book, or duplicate assessment roll. Upon receipt of 
the certified copy of the assessment roll by the treasurer, it shall at 
once become his duty to notify each person affected by the same, of 
the amount of the assessment against him by placing in the postofiice 
in such city a notice addressed to such person. The treasurer shall 
also, on the first Monday in each month, give notice in some newspa- 
per of general circulation, to persons who have failed to take advant- 
age of the opportunity to make payment of assessments made against 
him in ten annual installments, or pay in cash the amount of said as- 
sessment within thirty days from the date of the approval of final esti- 
mate by the board of public works, by publishing a description con- 
taining the name of such person, the name by which the improvement 
is known and the amount owing by each person, and a statement to 
the effect that unless such assessment is paid within thirty days suit 
will be instituted for recovery of the amount due. The treasurer 
shall add to the amount due from each person so notified twenty cents 
for each tract or parcel of land mentioned in the advertisement, and 
collect the same to cover the cost of such advertisement, and such sum 
shall be added to the amount due from each person and shall be in- 
cluded in and covered by the lien of the assessment. [As amended. 
Acts 1897, p. 56. In force February 23, 1897.] Burns' Supp. 1897, 
§ 3849. 

Acceptance by board— Conclusive.— The board of public works are the sole judges 
of the question whether the work has been done according to the terms of the contract 
or not. Its acceptance of the work is conclusive upon the property owner unless such 
acceptance was fraudulent. Darnell v. Keller, 18 App. 103. 



§ 460 CITIES OF MORS THAN ONE HUNDRED THOUSAND. 420 

Judgfrneiit of board quasi judicial — Fraud— Effect. — Tlie jadgment of the board in 
passing upon the question of the contractor's compliance with the contract is of a quasi 
judicial character. Fraud may render such act void; but, if so, the fraud must be upon 
the part of the contractor in connection with the act of the board in the approval of the 
work. The mere fact that the work was fradulently done will not, of itself, render the 
approval void. Darnell v. Keller, 18 App. 103. 

Quaere. — The statute does not provide for notice to the property owner of a hearing 
before the board upon the question of the acceptance of the work, or the making of the 
assessment. Can he be bound by such q^iasi judicial action without notice and oppor- 
tunity to be heard; and, is it not the intent of the subsequent provisions of the statute 
relating to the enforcement of the lien of the assessment by foreclosure suit, that he 
shall then have his day in court upon the question as to whether the work has been 
done according to the contract and his property benefited thereby to the amount of the 
assessment ? Under the general law fbr the incorporation of cities the acceptance of 
the work by the city authorities is only prima facie evidence that the work was done 
according to the contract. Upon the questions suggested see, Gulick v. Connely, 42 
Ind. 134; Garvin v. Daussman, 114 Ind. 429; Barber, etc., Co. v. Edgerton, 125 Ind. 
455; Johnson, etc., v. Lewis, 115 Ind, 490; Law v. Johnson, 118 Ind. 261. 

460, Payment by installiiients — Waiving' errors — Payment before 
due, — 79. Whoever desires to exercise such privilege of payment by 
instaUment shall at any time before the expiration of thirty (30) days 
after the allowance of the final estimate aforesaid, enter into an agree- 
ment in writing, that in consideration of such privilege he will make 
no objection to any illegality or irregularity w4th regard to the assess- 
ment against his property and will pay the same as required by law 
with the specified interest. Such agreement shall be filed in the office 
of the department of finance. In all cases where such agreement has 
not been signed and filed within the time limited, the entire assess- 
ment shall be payable in cash without interest before the expiration of 
said thirty (30) days. After said thirty days, if not paid wdien due 
such total assessment shall bear interest at the rate of six per cent. (6 
per cent.) from the date of the final estimate. Persons signing and 
filing the agreement within the time limited, and entitled to pay in 
installments, may nevertheless at any time after the expiration of the 
first year, pay up their entire assessment and stop the interest thereon, 
and be relieved of the lien of the same, on condition that they at the 
same time pay up all accrued interest, and also interest up to the time 
the next installment of interest is payable: Provided, That before 
such persons shall be entitled to make such prepayment they shall 
give notice in writing at the treasurer's ofiice of their intention so to 
do, six months in advance of the time when such payment is made. 
R. S. 1894, § 3850. 

Payment— When due— Demand.— If the property owner does not, within thirty days 
after the allowance of the final estimate, enter into an agreement in writing to pay the 
assessment for street improvements in installments, the entire assessment becomes due. 
No provision is made for a demand before suit. Myers v. Indianapolis, etc., K. Co., 12 
App. 170; Sloan v. Faurot, 11 App. 689. But as to notice before suit, see amendment 
of 1899, § 463, posL 



421 EXECUTIVE OFFICERS AND DEPARTMENTS. § 461 

4:61. Duty of treasurer — Separate accounts. — 80. It shall be the 
duty of the treasurer to receive the same, keep all account thereof, and 
give proper vouchers therefor. The department of finance shall charge 
the treasurer with the amounts of such assessments and interest as it 
accrues. The department of finance shall carefully keep a separate 
account of the funds arising from each particular improvement ordered 
by the board of public works pursuant to this act, and no proceeds 
arising from assessments for the improvement of any particular street 
or alley shall be diverted to the payment for any other improvement what- 
ever. The proceeds shall in each case constitute a separate special fund 
for the payment of contractors for the particular work, upon the allow- 
ance of estimates by the board of public works, or for the security and 
payment of street improvement bonds, if any are issued, as hereinafter 
provided for such street or alley. R. S. 1894, § 3851. 

Assig'nment— Payment by check— Receipt of treasurer.— Payment of a street im- 
provement assessment by the cashing of a check received therefor by the city treas- 
urer relates back to the deUvery of the check so as to defeat an action by a bond-holder 
tvo enforce the lien of the assessment as upon a default between the time of acceptance 
and the payment of the check, although a receipt therefor is not given nor a credit 
therefor entered upon the assessment roll as required by statute. The receipt of the 
treasurer and the memorandum he is required to make are evidence of payment, but 
they are not the only evidence thereof. The same may be proved by parol. Indiana 
Bond Co. V. Bruce, 13 App. 550. 

462. Bonds for street improvements — Installments— Penalty^ — 
Foreclosure* — 81. For the purpose of anticipating the collection of 
such assessments, the department of finance shall issue street or pub- 
lic improvement bonds, payable out of the funds actually paid to and 
collected by such city on such account, the proceeds of the same to be 
applied exclusively to payment for the improvements on the particu- 
lar street or alley for the anticipation of the assessment for which the 
same are issued. Bonds shall be issued for the principal of such as- 
sessment or assessments, and appropriate coupons shall be attached 
thereto, evidencing and representing the semi-annual interest. Each 
bond shall be issued for a sum not exceeding five hundred dollars, and 
the coupons thereto attached shall evidence and represent the semi- 
annual interest thereon. The bonds shall bear interest at a rate not 
exceeding six per centum per annum, to be computed from the date 
of the final estimate, which interest shall be payable semi-annually as 
herein provided. The bonds shall form a series numbered from one 
to ten, inclusive, and shall be payable annually, but the interest shall 
be payable semi-annually. In cases where the final estimate is al- 
lowed at any time during the period intervening between the first day 
of March and the first day of October in any year, the bonds and cou- 
pons shall be dated on the first day of December of such year, and in 
all cases where the final estimate is allowed at any other period in any 
year than that intervening between the first day of March and the first 
day of October in any year, the bonds and coupons shall be dated on 
the first of June, following. The interest shall be computed from the 



§ 462 CITIES OF MORE THAN OXE HUNDRED THOUSAND. 422 

date of the final estimate up to the date of such bonds and the coupons 
shall properly evidence and provide for such interest computed as 
aforesaid from the date of the final estimate. Each bond shall bear 
the name of the street or alley for which it is issued, in cases where it 
is issued for street improvement assessments, and in cases where it is 
issued for sewer or other assessment shall appropriately designate the 
improvement or work for which it is issued. Assessments in cases 
where the option to pay in installments is exercised shall be payable 
as follows: Ten per centum of the principal, together with all accrued 
interest on the same, on the third Monday of April next succeeding 
the allowance of the final estimate on such work by the board, except 
where such estimate has been made between March first and October 
first of any year, in which case such first installment shall be payable 
on the first Monday of November next succeeding such estimate; the 
next payment shall be six months' interest on the entire unpaid prin- 
cipal, payable at the date for the general payment of taxes, either spring 
or fall, as the case may be, next after the first installment falls due; 
the next payment shall be ten per centum of the original principal 
and six months' interest on the unpaid principal, payable on or before 
the date for the general payment of taxes, spring or fall, as the case 
may be, occurring one year after the first installment was payable; 
and so on, thereafter, ten per centum of the original principal, with 
six months' interest on the unpaid principal once each year, and six 
months' interest on the unpaid principal in alternate turn with the 
annual payment of principal and interest, until the entire principal 
and interest have been paid. 

It being hereby intended and provided that installments of prin- 
cipal and interest shall be paid in advance of the maturity of bonds and 
coupons, in order to enable the treasurer to pay such bonds and coup- 
ons, as they respectively fall due, for which purpose the said treasurer 
shall hold the money paid to him. It shall be the duty of the treas- 
urer to promptly and properly apply all money paid in on such install- 
ments to the holders of the bonds and coupons, and he shall not use 
the money received by him in payment of such installments for any 
other purpose whatever than that of paying the bonds and coupons, 
and he shall promptly ascertain the amount paid in on such install- 
ments, and without delay pay the same to the bond and coupon hold- 
ers entitled thereto. In case any person shall exercise his right of 
prepayment of his assessment, as by law provided, and shall fully 
pay such assessment and interest, all interest and liability shall there- 
upon cease as to the property upon which the assessment so paid is 
levied. 

The liens against property shall be extinguished as rapidly as the 
treasurer shall collect funds, by reason of such prepayments, and the 
funds so collected shall be applicable to the outstanding bonds and 
coupons in the order of their serial numbers, and interest thereon 
shall cease, jpro tanto, from the time of such collection. 

It shall be the duty of the treasurer to promptly pay to the person 



423 EXECUTIVE OFFICERS AND DEPARTMENTS. § 462 

presenting a bond or coupon such sum as may be applicable to the 
payment thereof, out of any prepayment or prepayments. It shall be 
the duty of the treasurer, in case prepayments are made, to notify the 
bond or coupon holders, in cases where such coupon or bond holders 
are known, or to give written notice to the person who presents such 
bonds or coupons and where such bond or coupon holders are not 
known, or such bonds or coupons are not presented, then to notify the 
contractor by whom the improvement was made. In cases where 
property owners are in default, or become delinquent in the payment 
of any installments, the treasurer shall forthwith notify, in writing, 
the holder of such bond or coupon, where such bond or coupon holder 
is known, of such default or delinquency; if such bond or coupon 
holder is not knowm, then a like notice shall be given to the contractor. 

Coupon holders or bond holders who shall furnish their names and 
address to the treasurer, and a general description of the bonds and 
coupons held by them, shall be entitled to written notice from the 
treasurer. Such notice shall, by the treasurer, be properly addressed 
and mailed. The treasurer shall keep a register of all coupon holders 
or bond holders who may furnish him a description of their coupons 
or bonds, and their names and addresses. 

It shall be the duty of the treasurer, in all cases where any property 
owner is in default in the payment of any installment, or any part 
thereof, chargeable upon or against his property, to add a penalty of 
twenty per centum upon any installment, or any part thereof, for such 
delinquency, which said penalty, when collected, shall be and become 
the property of such city. And the treasurer shall, on the first day of 
January, of each year, certify to the county auditor a list of such de- 
linquency or delinquents. And the county auditor, in making out 
the list of lands and lots in such city returned and remaining delin- 
quent for state, county, township, road, city, school, and other taxes, 
which he is required by law to make between the first Monday of No- 
vember and the first day of January, in each year, shall enter therein 
against the name of each person remaining delinquent on account of 
state, county, township, road, city, school, and other taxes, for which 
said lands are liable, the amount of such delinquent special assess- 
ments so certified to him by the treasurer, as aforesaid, against the 
lands and lots described in such certification of the treasurer, which 
said assessments shall be carried out with the taxes for state, county, 
township, road, city, school, and other purposes, into one total. Pay- 
ment of such assessments, with interest, penalty and costs, shall be 
enforced by sale of the lands and lots liable therefor, or so much there- 
of as may be necessary, which sale shall be made by the county treas- 
urer in the same manner, at the same time and place, and upon the 
same notice as is prescribed by law for the sale of lands and lots for 
the payment of delinquent state, county, township, road, school, city, 
and other taxes, the property to be offered for sale and sold for the 
payment of all the taxes and assessments of every kind, for which 
the same is liable, with interest, penalty and costs thereon, as one 



§ 462 CITIES OF MORE THAN ONE HUNDRED THOUSAND. 424 

entire sum, and not separately for said assessments. Nor shall 
notice of the sale be given separately for the said assessments, but 
it shall be stated in the notice required to be given of the sale of 
the lands and lots for state, county, township, road, city, school, 
and other taxes, that the sale thereof will also be for the pay- 
ment of the delinquent municipal assessments of the city, 
which shall be the only notice required to be given. Payment 
of the bid, upon the sale of any such lands and lots, shall be enforced, 
so far as it relates to such municipal assessments, together with the 
penalties above provided for, by the same officer, and in the same 
manner, as is provided for by law for the enforcement of the payment 
of a bid made upon the sale of lands and lots for the state, county, 
township, road, city, school, and other taxes, and the proceeds of sale 
shall be held by the treasurer and paid to the parties entitled thereto. 
The guarantee required by law to be indorsed by the county treasurer 
upon each certificate given by him upon a purchase of lands and lots 
for state, county, township, road, city, school, and other taxes, shall, 
in every case where such sale is made for said municipal assessments, 
also apply to and embrace the amount of such municipal assessments 
for which sale was made; and the holder of such certificate shall have 
the same remedy upon such guaranty as to municipal assessments 
embraced therein, that he has as to the state, county, township, road, 
city, school, and other taxes, to which the same relates. All provis- 
ions of law in reference to the certificate to be issued to a purchaser 
of lands and lots upon sale for state, county, township, road, city, 
school, and other taxes; the effect of such sale, and the rights of the 
purchaser; redemption therefrom; the making of deeds upon failure 
of redemption, and as to the force and effect of such deeds; for the 
quieting of titles acquired thereunder; for transferring to the pur- 
chaser the original lien for the taxes and municipal assessments for 
which the sale was made, and subsequent assessments paid; and for 
the enforcement of such lien by judicial proceedings, when the pur- 
chaser fails to acquire a valid title by virtue of the purchase; and as 
to the interest and penalties to be collected upon redemption from 
such sales before deed is made, or upon judicial proceedings to 
quiet the title or enforce the lien of the purchases; and all other pro- 
visions of law relating to the collecting and accounting for state, 
county, township, road, cit}^, school, and other taxes, shall, so far as 
the same are applicable, apply with like force and effect in the case of 
municipal assessments in cities of the class referred to in this act. 

Said board may provide in its original resolution of improvement 
for the issue of such bonds and coupons directly to the contractor, in 
which case it shall be the duty of the department of finance, upon 
the allowance of the final estimate made by the board of public 
works, to issue the same directly to the contractor; otherwise they 
shall be issued and sold as other city bonds. After the issue of 
such bonds, no suit shall lie to enjoin the collection of any assess- 
ment, and the validity of the same shall not be questioned, but all 



425 EXECUTIVE OFFICERS AND DEPARTMENTS. § 463 

propert}^ owners shall be conclusively estopped and precluded from 
in any manner assailing the effectiveness or validity thereof. Such 
bonds, when issued, shall convey and transfer to the owners thereof 
all lien, right, title, and interest in and to the assessments and liens 
upon the respective lots and parcels of ground hereinbefore provided 
for, which liens shall stand as security for such bonds and coupons 
until they are paid, with full power to enforce the collection thereof, 
if such bond or coupon be not paid on presentation to the treasurer, 
by foreclosure in any court of competent jurisdiction, as provided in 
the preceding section, and sales to satisfy such bonds and coupons 
shall be made as hereinbefore provided for sales upon judgments or 
decrees foreclosing liens for assessments levied for street improve- 
ments: Provided, That the first bond-holder who institutes foreclosure 
suit in any court of competent jurisdiction against such property, or 
any lot or parcel thereof, shall be entitled to have the proceeds of said 
suit applied, pro rata, to the payment of his own bonds and of bonds 
held by others. The property upon which the assessment is laid shall, 
in no event, be sold for less than the amount of the assessment, attor- 
ney's fees and costs, and the avails of the sale shall be distributed as 
herein provided. If the property shall sell for more than enough to 
pay the principal, interest, attorney's fees, costs and expenses, the 
surplus shall be paid to the property oivner or party lawfully and 
rightfully entitled thereto. No more than one foreclosure suit shall 
be brought against the any one lot or parcel of land, but all lots or 
parcels of land, the assessments against which are in default, may be 
joined in one proceeding. All bonds, as herein provided, shall be 
negotiable as inland bills of exchange, and be free from all defenses 
by any property owner or property owners. It shall not be necessary 
in said bonds to recite the steps taken in ordering such improvements, 
or directing the assessment, but it shall be sufficient to make a gen- 
eral reference to such assessment, and to the statute. [As amended, 
Acts 1897, p. 79. In force February 26, 1897.] Burns' Supp., 1897, 
§ 3852a. 

Bonds — Pledg'e of assessments. — The assessments are pledged by the terms of the 
bond issued to the contractor as a security for the payment thereof, and in case of a 
faikire to pay by the property owner when an instalhiient falls due, the holder of the 
bond may sue such property owner and enforce the lien for the entire assessment, in- 
cluding attorney's fees. Indiana, etc., Co. v. Bruce, 13 App. 550. 

463, Failure to pay installment — Effect — Foreclosure — Attorneys' 
fees — Notice to pay — Limitation, — 82. Failure to pay any installment 
of principal or interest when the same is due shall bring all install- 
ments of principal yet unpaid forthwith due and payable. If such 
city shall fail to collect any unpaid assessment or installment thereon 
when due, no liability shall thereby accrue against such city, but the 
owner of the lands hereinbefore provided for, or in case no bonds have 
been issued, then the person to whom is due and owing the amount of 
such unpaid assessment for the performance of such Avork shall have 
the right to proceed in any court of competent jurisdiction to enforce the 



§ 463 CITIES OF MOKE THAN OXE HUNDRED THOUSAND. 426 

liens or unpaid assessment recovering interest, costs and a reasonable 
attorney's fee, and to have the proceeds of sale applied on his claim: Pro- 
vided, Such attorney's fee to be so recovered shall not be more than 
five dollars, if the amount due shall be paid or tendered within ten 
days after service of the summons in such suit, or after notice by 
publication, in case of non-residents, and in no case shall the attor- 
ney's fee exceed the amount of the assessment; if the amount due shall 
not be paid or tendered within said ten days, then the attorney's fees 
in cases in which the assessment exceeds fifty dollars shall not exceed 
ten per cent, on the first one hundred dollars of the sum due and five 
per cent, on the excess thereof: And provided further, In case the 
person from whom is owing an assessment shall not elect to pay in 
installments the person to w^hom such assessment is owing at least ten 
days before bringing suit to foreclose as above, shall notify such person 
from whom the assessment is owing of the amount thereof, and that 
the same is or will become due. A notice mailed to the person whose 
name appears upon the assessment roll as the owner of the property, 
addressed to such person within such city, shall be deemed a sufiicient 
notice. It shall be the duty of the county clerk to certify to the treas- 
urer all satisfactions of assessment liens by such sale and the treasurer 
shall enter the same of record. No action shall be maintained for 
such foreclosure which is not commenced within three years from the 
time when the right of action accrues. The provisions of this section, 
so far as applicable, shall apply to assessments for sewers, drains, 
levees, or for the change of any water-course or the drainage of any 
section of ground. [As amended, Acts 1899, p. 451. In force March 
4, 1899.] 

Xote. — Acts and proceedings of the departments and officers of the city of Indian- 
apohs, under §§ 38, 40, 45, 56, 60, 61, 73, 77, 82, 89, 90, 91, 97, 100, 110, 114 and supple- 
mental § 136 of this act, as the same were attempted to be amended and enacted by 
act of 1895 (Burns' Supp. 1897, §3809 et seq.}, were legahzed and validated by act of 
1899 (Actsl899, p. 449). 

Assig-nment— Payment by check— Eeceipt of treasurer.— Payment of a street im- 
provement assessment by the cashing of a check received therefor by the city treasurer 
relates back to the delivery of the check so as to defeat an action by a bond holder to 
enforce the lien of the assessment as upon a default between the time of acceptance 
and the payment of the check, although a receipt therefor is not given nor a credit 
therefor entered upon the assessment roll as required by statute. The receipt of the 
treasurer and the memorandum he is required to make are evidence of payment, but 
they are not the only evidence thereof. The same may be proved by parol. Indiana, 
etc., Co. V. Bruce, 13 App. 550. 

Assessment roll as exhibit — Foreclosure.— In an action to foreclose a street im- 
provement lien, a copy of the assessment roll, or at least that portion of it which relates 
to the defendant's property, should be made an exhibit of the complaint, to make the 
complaint sufficient on demurrer or on an appeal from judgment by default. Sloan v. 
Faurot, 11 App. 689. 

Complaint — Averments— Description. — In an action to foreclose an improvement 
assessment lien where the complaint describes the property assessed as being in '' Milli- 
gan's Brook Park Addition to the city of Indianapolis," and in an exhibit it appears 
that the proposed improvement is to be made " in said city," the city of Indianapolis 



427 EXECUTIVE OFFICERS AND DEPARTMENTS. § 464 

being mentioned in the preceding line, the allegations sufficiently show the improve- 
ment to hav^ been made within the city of Indianapolis. Spades v. Phillips, 9 App. 487. 

Parties to action — Wife.— The wife of the property owner is a proper party defend- 
ant to answer to her interest, that her inchoate interest in the property may be fore- 
closed to satisfy the lien. Coburn v. Bossert, 13 App. 359. 

Assessment lien — Complaint to foreclose. — A. complaint that avers "that said 
plaintiff completed said work in accordance with the terms and stipulations of said 
agreement, to the entire satisfaction of the department of public works of said city, and 
the same was duly accepted by said department," is sufficient; it is sufficient in such 
case to allege generally that the plaintiff ''performed all the conditions on his part" ; 
it is not necessary to state the facts constituting the performance. Darnell v. Keller, 
18 App. 103. 

Counter-claim— Answer in bar.— The fact that the work was not done according to 
contract is not matter of counter-claim, and counter-claim will not lie in an action to 
foreclose an assessment lien ; if such fact can be inquired into at all in such case it must 
be on answer in bar. Darnell v. Keller, 18 App. 103 ; Bozarth v. McGillicuddy, 19 
App. 26. 

The acceptance of the work by the board of public works is conclusive upon the prop- 
erty owner, unless such acceptance was fraudulent. Darnell v. Keller, 18 App. 103. 

161. Change of levees or water-course. — 83. Whenever the board 
of public works shall order the erection or change of any levee, or 
the change of any water-course, natural or artificial, or the drainage 
of section of ground, it shall cause the necessary drawings and speci- 
fications to be prepared for the work and filed in such office, and shall 
publish a notice of the resolution ordering the work to be done, shall 
hear remonstrances, modify, confirm or rescind their original resolu- 
tion, prepare a list of property-holders beneficially or injuriously 
affected by such work, advertise for bids for such work, let the same 
by contract, assess benefits and award damages, and in these and all 
other respects proceed in accordance with the provisions of this act 
relating to the appropriation of property and the laying out of streets. 
R. S. 1894, § 8854. 

465. Liens of assessments — What governs. — 84. The provisions 
of this act for the liens of assessments, preparation of the duplicate 
assessment roll by the department of finance, delivery of such roll to 
the treasurer, the collection of assessments, right of election of prop- 
erty-holders to pay the same in installments, the issue of bonds to an- 
ticipate the same, and all other provisions with regard to street im- 
provement assessments, shall govern in the matter of levee assess- 
ments so far as the same are applicable. R. S. 1894, § 3855. 

466. Sewers and drains — Establishing. — 85. Whenever the board 
of public works shall order the construction of any local sewer or 
drain, it shall cause the necessary drawings and specifications for such 
work to be prepared and filed in such office; shall cause a notice of the 
adoption of the resolution ordering the work to be done to be published 
in some daily newspaper of general circulation in such city once each 
week for two weeks. Such notice shall name a date after the last day 
of publication at which said board will receive or hear remonstrances 
from persons interested in or affected thereby. On the date set, said 



§ 466 CITIES OF MORE THAN ONE HUNDRED THOUSAND. 428 

board shall consider such remonstrances, if any, and thereupon take 
final action, confirming, modifying or rescinding their original reso- 
lution. Such action shall be final and conclusive on all persons. If 
such original resolution be confirmed or modified, said board shall cause 
a notice to be published in such city once each week for two weeks, 
informing the public and contractors of the general nature of the 
work and of the fact that the drawings and specifications are on file 
in the ofiice of the board, and calling for sealed proposals for such 
work by a day not earlier than ten (10) days after the first of said 
publications. The board may, in its discretion, fix a later day for re- 
ceiving such sealed proposals, provided such day shall be mentioned 
in each of such notices. Whenever such sewer or drain shall, from 
its size and character, be intended and adapted not only for use by 
owners of abutting property along the line of such sewer or drain, but 
is also intended and adapted for receiving sewage from collateral 
drains, already constructed or which may be constructed in the future, 
then the board of public works shall prepare a map w^hich will give 
thereon the exact course of said proposed sewer, and its appurtenances, 
and which will clearly show, by boundar}^ lines, the total area, or dis- 
trict to be drained and to be assessed for the construction of said 
sewer; shall prepare all necessary profiles, drawings and specifications 
for such work, which map, profiles, drawings and specifications shall 
be placed on file in the office of said board; shall publish a notice of 
the adoption of the resolution ordering the work to be done, and shall 
describe in such resolution, and in such advertisement, the boundary 
lines of the district, or area, intended to be drained by such sewer and 
to be assessed for the cost of the same, and such publication of the 
adoption of said resolution shall constitute a legal notice to all owners 
or holders of property, or persons having valuable interests therein, 
within the bounds of the district or area described; that such property 
in said district or area is to be assessed for the construction of said 
sewer. Such publication shall be made in some daily newspaper of 
general circulation in such city once each week for two weeks, and 
shall name a date, after the last day of publication, at which said board 
will receive or hear remonstrances from persons interested in or af- 
fected by the construction of said sewer. On the date set, said board 
shall consider such remonstrances, if any, and thereupon take final 
action, confirming, modifying, or rescinding their original resolution. 
Such action shall be final and conclusive upon all owners or holders 
of property, or persons having valuable interests therein, in the dis- 
trict or area intended to be drained and assessed for the construction 
of said sewer. Advertisements for bids shall be made in the same 
manner as for the construction of a local sewer or drain, above pro- 
vided for. [As amended, Acts 1893, p. 56. In force February 22, 
1893.] R. S. 1894, § 3856. 

Sewers, drains, etc., and construction of under the general law, see ante, § 124, 
clauses 26 and 43 and notes, §§127 and 183 and notes; and post, §§1090, et seq. and 
notes, and § 1107, et seq. and notes. ■ 

Statute construed— Construction of sewer— Notice— Due process of law.— This sec- 
tion, relating to the construction of sewers, the giving of notice of the work to be done. 



429 EXECUTIVE OFFICERS AND DEPARTMENTS. § 467 

describing in such notice the boundary hnes of the district or area intended to be 
drained and to be assessed for the costs, and fixing the day on which remonstrances 
will be heard, is constitutional, the notice required by statute being ample for the prop- 
erty holders of the district, and ample opportunity being given for the property owners 
to be heard. Swain y. Fulmer, 135 Ind. 8. 

Remonstrance. — This section provides a remedy for the property-owner by permit- 
ting him to remonstrate, but if he fail to do so within the time fixed by the statute he 
must abide the decision of the board of public works, whose action is made final by the 
statute. Byram v. Foley, 17 App. 629. 

467. Costs of sewers — How paid, — 86. Whenever any such sewers 
shall, from its size and character, be intended and adapted only for 
local use by property holders along the line of street or alley on which 
it is constructed, and, in the opinion of such board, is not intended 
or adapted for receiving sewage from collateral drains, then, and in 
that case, the whole cost of said sewer, and all appurtenances shall be 
paid for by the holders of property abutting on the street, alley or 
public highway, on which said sewer shall have been constructed. 
The cost of such sewer shall be estimated according to the total num- 
ber of square feet of property abutting on the line of said sewer, and 
such cost shall be apportioned on the lands or lots abutting thereon, 
in the proportion as their area bears to the total assessed area: Pro- 
vided, That in making such assessment against any unplatted land the 
depth of the same from the front line thereof shall not be assumed 
greater than two hundred (200) feet, or less than the depth of the 
platted lots next adjoining such unplatted ground nearest to the center 
of the city: And provided, further, That whenever any lot or parcel 
of land which abuts on two or more streets or alleys, has already been 
assessed for a local sewer constructed in one of such streets or alleys, 
such board shall have power, at the time of the adoption of the assess- 
ment roll for such sewer to reduce and fix the assessment against such 
lot or parcel of land according to the benefit it will, in the opinion of 
such boards derive from such sewer, and the amount of such reduc- 
tion shall be assessed pro rata against the other property abutting on 
the line of such sewer. In case that such unplatted ground borders 
upon two streets or alleys intersecting each other, and assessments 
have been already made against such land for a sewer on one side, 
such assessment extending back for a distance as prescribed above, 
then, in that case, assessment shall be made for a distance of but fifty 
(50) feet back from the line of the street or alley in which the sewer 
is located. [As amended, Acts 1899, p. 554. In force March 6, 
1899.] 

Lots abutting" on alley— Assessment.— In the construction of a local sewer, a lot 
which does not abut upon the street in which such local sewer is laid, but does abut 
upon an alley through which a collateral drain extends connecting with such local 
sewer, may be assessed for the construction of said sewer. Byram v. Foley, 17 App. 629. 

After the work has been done and assessment made it is too late to interpose a de- 
fense that the improvement did not benefit the property against which the assessments 
were made. Byram v. Foley, 17 App. 6*29. 

Power to construct sewers a continuing' one— Double assessment.— The power to 



§ 468 CITIES OF MORE THAN ONE HUNDRED THOUSAND. 430 

construct sewers is a continuing one, and the necessity for a sewer must be determined 
by the municipal officers, and comes within their discretion. And where property 
fronted on one street, and it had been assessed for the construction of a sewer on that 
street, and the property extended back toward another street, to an alley, and along 
that alley the board of public works had constructed another sewer, said property might 
be again assessed for such other sewer. Byram v. Foley, 17 App. 629; Coburn v. Bos- 
sert, 13 App. 359. 

The power in the officers to determine when they should act in the matter of con- 
structing sewers, carries with it the power to determine how frequently they shall act. 
Coburn v. Bossert, 13 App. 359. 

Double assessments— Special benefits— Frontag'e.— Assessments for local sewers 
are not placed upon the basis of special benefits, like public sew^ers, but according to 
the frontage as in street improvements, and a hardship may be imposed upon the land- 
owner by what amounts to a double assessment upon the whole area of his property, 
but relief therefrom must be sought in the legislature and not in the courts. Coburn v. 
Bossert, 13 App. 359. 

468. Main sewers — Assessment of costs — Construction through 

cemeteries. — 87. Whenever in the opinion of such board, any sewer 
or drain ordered to be constructed, or any enlargement of one already 
constructed, shall from its size and character, be intended and adapted 
not only for use by abutting property holders along the line of such 
drain or sewer, but is also intended and adapted for receiving sewage 
from collateral drains already constructed, or which may be con- 
structed in the future, then, and in that case, such board shall make 
a division of the cost of such work. So much of such cost as shall be 
equivalent to the construction of an adequate local sewer not adapted 
to receive sewage from collateral drains or sewers, shall be paid for 
exclusively by the abutting property holders in the same manner and 
to the same extent as local sewers are paid for by them. The excess 
of cost, over and above what would be equivalent to the cost of a local 
sewer, shall be assessed against each piece of property in the district or 
area to be drained, in the proportion its area bears to the total area of 
the district, including abutting property holders, as well as the hold- 
ers not situated on the line of such drain or sewer. 

If such board shall determine that it is necessary to extend any 
sewer or drain through or adjacent to any parcel of land, held, used, 
or occupied for cemetery purposes, all necessary rights of way there- 
for .may be acquired by such city either by purchase or by condemna- 
tion proceedings as in this act provided, any other law to the con- 
trary notwithstanding, but lots or parcels of land .held, used, or 
occupied for such purpose shall not be assessed for the construction of 
such sewer or drain, but so much of the cost of such sewer or drain as 
would be assessable against such lots or parcels of land if not so held, 
used or occupied, shall be assessed against such city and shall be paid 
by it. If such city shall proceed in such case by condemnation pro- 
ceedings to acquire such right of way, and any of the owners or holders 
of property and of valuable interests therein sought to be taken, or to 
be injuriously affected, are unknown, the owner or holder may be 
designated as unknown upon the list or roll provided for by section 



I 



431 EXECUTIVE OFFICERS AND DEPARTMENTS. § 469 

sixty-four (64) of this act, and in all subsequent steps in such pro- 
ceedings, including notice by publication. If upon acquiring such 
right of way there shall remain buried within the limits thereof, any 
dead body, it shall be the duty of the friends, relatives or next of kin 
to promptl}^ remove the same; if, however, they fail to do so, said 
board of public works, prior to the construction of the sewer or drain 
in such right of way, shall cause the same to be removed and decently 
interred elsewhere in a public cemetery, and the place of such inter- 
ment to be marked in some appropriate manner. The name of the 
person so reinterred, if known, and the place of such reinterment 
shall be entered upon the records of said board. [As amended. Acts 
1895, p. 384. In force March 15, 1895.] Burns' Supp. 1897, § 3858. 
4:69. Assessment roll — Contents — Collection^ — Laws applicable. — 
88. In making assessments against each lot or parcel of land, said 
board of public works shall, as soon as any contract has been let for 
the construction of any sewer or drain, make out an assessment roll, 
with names of property holders and descriptions of the property as- 
sessed for such proposed sewer or drain. The assessment roll, when 
completed, according to these provisions, shall be delivered to the de- 
partment of finance in the same manner as street improvement assess- 
ment rolls. The department of finance and the treasurer shall there- 
upon discharge the same duties in respect thereto as are heretofore 
prescribed in relation to street improvement assessments. The provis- 
ions of this act in relation to liens for street improvements, to the pay- 
ment of street improvement assessments by installments, and the issu- 
ance of bonds and coupons to anticipate the same, and the duties of 
the treasurer, shall also apply to the lien, the enforcement thereof and 
to payments of assessments for the construction of sewers, drains, lev- 
ees, or for the change of any water-course, or the drainage of any sec- 
tion of ground. The provisions of this act concerning the enforcement 
of assessment liens for street improvements, foreclosure suits, attor- 
ney's fees, the procedure therein, the conduct of sales by the sheriff, 
the execution of certificates and deeds, and all matters of a similar na- 
ture regarding assessments for street improvements and the collection 
thereof, and the rights of contractors, assignees, and bondholders shall 
apply to the enforcement of assessments made for the construction of 
sewers, levees, or drains, or to pay for the drainage of any parcel, lot 
or tract of land or to pay for a change in any stream or water-course, 
as well to the collection of any bond or coupon issued under the 
provisions of this act. [As amended. Acts 1895, p. 384. In force 
March 15, 1895.] Burns' Supp. 1897, § 3859. 

[Acts 1899, p. 451. In force March 4, 1899.] 

470. Levees, drains and water-courses — Change and coustnietion. 

— Supplemental section No. 136. Whenever the board of public 
works shall declare that the erection or the change of any levee, or 
the change of any water-course, natural or artificial, or the drainage 
of any section 6f ground, or the construction of any sewer or drains. 



§ 470 CITIES OF MORE THAN ONE HUNDRED THOUSAND. 432 

is necessary for the public welfare of the said city, or any part or por- 
tion thereof, and shall order that the same shall be made, it shall 
cause the necessary drawings and specifications to be prepared for the 
work, and filed in such ofhce. At the time of making the order for 
such improvement or work, the board of public works may take into 
consideration whether the said work or improvement, when com- 
pleted, will beneficially or injuriously affect any lands or property 
outside of the corporate limits of said city. In case the board shall 
find and declare that the proposed work, when completed, will injur- 
iously or beneficially affect lands or property without the corporate 
limits of such city, then and in that case only, the said board shall 
file a copy of all proceedings had in the matter of the said improve- 
ment or work in the circuit court of the county in which such city is 
situate, includiug a list of all the persons whose property will be so 
affected, as the same appears upon the records of county at the time 
the said board passes said declaration for improvement, with a de- 
scription of the boundaries embracing the same; which proceeding- 
shall be docketed in the circuit court as a cause; and the court shall 
fix a time when the same shall be heard. And thereupon the clerk of 
said court shall notify all persons mentioned in said proceedings, or 
to be injuriously or beneficially affected thereby that the said proceed- 
ings will be heard at a date named, which notice said clerk shall 
cause to be published once a week for at least three weeks in some 
newspaper of general circulation throughout the county. It shall not 
be necessary in said notice to set forth the names of all the persons 
beneficially or injuriously to be affected by such work, but it shall be 
sufficient in said notice to give the outlying boundaries of the district 
or locality which said board shall have determined to embrace all the 
persons to be injuriously or beneficially affected thereby, as set forth 
in the said proceedings, and the same may be continued and ad- 
journed from time to time as the court may direct. At said hearing 
any property holder within the boundaries of said district may file an 
answer showing any reason why the said improvement should not be 
made, and upon such issue the court shall hear evidence and deter- 
mine the fact. 

If the court shall determine that such improvement or work should 
be made substantially as proposed by the said proceedings, then the 
court shall enter a judgment accordingly; otherwise, dismiss .the pro- 
ceedings. From such judgment there shall be no appeal. 

In case the court shall order and adjudge that the said work or im- 
provement shall proceed, the same shall be done under the control 
and supervision of the board of public works, which board shall 
advertise for bids for such work, let the same by contract, and in these 
and all other respects proceed in accordance with the provisions of 
this act relating to the construction of sewers and drains wholly 
within the city, except that after the contract shall have been awarded 
the said board of public works shall report the same to said court to 
be filed in said proceeding, and thereupon the court shall appoint 



433 EXECUTIVE OFFICERS AND DEPARTMENTS. § 470 

three competent, disinterested persons, who may be residing anywhere 
within the county, to be known as the board of assessors for said im- 
provement. The members of said board shall take an oath to honestly 
and faithfully perform their duties as such assessors. It shall be 
their duty to inspect the line of the said proposed improvement or 
work, and the property within such district, and estimate and assess 
the benefits against each piece of property to be benefited by said 
work, and award damages to each piece of property to be injuriously 
affected thereby; and in the performance of this duty they shall sit at 
such times and places as the court may direct, administer oaths, send 
for persons and papers, and hear testimony touching the question of 
benefits and damages to be assessed. At the conclusion of such hear- 
ing, which may be continued from day to day and [from] time to 
time, the said commissioners shall prepare a list or roll of the property 
holders together with a description of the property beneficially affected 
by such work, setting opposite each description or parcel the benefits 
thereto; and also a list or roll of such property holders, with a descrip- 
tion of the property injuriously to be affected by such work, and the 
damages thereto. Any description may be corrected at any time, or 
omissions supplied by the said commissioners, or the board of public 
works, and no proceeding shall be held to be defective or void by 
reason of any omission or defect in the said descriptions, and no 
property holder shall be heard to make any objection to the proceed- 
ing on the ground of any mistake or omission of name of his own or 
any other property holder within the said district, or that the prop- 
erty of any person is incorrectly described or wholly omitted, but 
upon such mistake or description being made known to the court, the 
judge shall have power to call the said assessors together, who shall 
be authorized and empowered to make any such additions or correc- 
tions as may be necessary in the premises from time to time. 

The work shall be carried on under the supervision of the board of 
public works, and when the same is finally accepted by said board it 
shall certify the fact of such completion and acceptance to the said 
court, which court shall thereupon by proper order direct the clerk of 
said court to make out in duplicate a true and corrected list or roll 
showing the names of the property holders, together with a descrip- 
tion of each piece or parcel of property, together with the benefits and 
damages assessed upon or in favor of such parcel, and certify the same, 
under the seal of the court, and deliver one copy thereof to the city 
comptroller, and the other to the treasurer of the county: Provided, 
That if said board of public works shall find that such improvement 
is necessary for the public welfare of such city, and that the benefits 
assessed shall fall below the amount required to pay the damages 
awarded and to pay for such improvement, said board shall order and 
direct that any balance required for such purpose shall be paid by the 
city out of the general fund or out of any sewer fund applicable to such 
payment. 

CiT. AND To.— 28 



§ 471 CITIES OF MORE THAN ONE HUNDRED THOUSAND. 434 

The provisions for the liens of assessments, the collection of assess- 
ments, right of election of property holders to pay the same in install- 
ments, the issue of bonds to anticipate the same, and all other provis- 
ions with regard to street or sewer improvement assessments, shall 
govern in the matter of assessments made for or on account of im- 
provements and public works constructed under the provisions of this 
section, as the same are applicable. 

At the conclusion of the proceeding the court shall make a reason- 
able allowance to the said assessors and tax the same with the other 
costs of the proceeding, which shall be payable out of the treasury of 
the city. 

In case it shall be necessary at any time to take, acquire, appropri- 
ate or condemn for the use of such city, an}^ property, real or personal, 
whether within or without such city, in order to carry out and com- 
plete such work or improvement, the same may be taken, appropriated, 
condemned and paid for as in other cases, provided in said act; or the 
said board of public works, for and in behalf of said city, may pur- 
chase and acquire the same and take a conveyance therefor to the use 
and benefit of the said city, under the provisions and regulations of 
said act. 

Note, — Acts and proceedings of the departments and officers of the city of Indianap- 
ohs, under §§ 38, 40, 45, 56, 60, 61, 73, 77, 82, 89, 90,91, 97, 100, 110, 114 and supplemen- 
tal § 136 of this act, as the same were attempted to be amended and enacted by act of 
1895 (Burns' Supp. 1897, § 3809, etseq.), were legalized and validated by act of 1899 (Acts 
1899, p. 449). 

SPRINKLING OR SWEEPING. 

471. Sprinkling and sweeping — Contracts. — 89. Whenever such 
board of public works shall order any street, alley, or public place to 
be sprinkled, or any street, alley or public place to be swept or other- 
wise kept clean, which is permanently improved with asphalt, vul- 
canite, brick, granite, wooden block, or other pavement, it shall cause 
the necessary specifications for such work to be prepared and filed in 
such office, shall publish a resolution ordering the work to be done, 
shall hear remonstrances, modify, confirm, or rescind their original 
resolution, and shall advertise for bids and let the same by contract 
as more specifically provided in this act with relation to the appro- 
priation of property and laying out of streets: Provided, however, It 
shall not be necessary to hear remonstrances in connection with the 
letting of the contract for any such work whenever the same is to be 
paid for out of the general funds in the treasurv. [As amended, Acts 
1899, p. 451. In force March 4, 1899.] 

472. Cost of sprinkling and sweeping. — 90. The cost of such 
sprinkling shall be assessed pro rata against the lots, tracts, and par- 
cels of land along the line of such street, alley or public place, as the 
cost of street improvement is assessed, except that such city shall not 
be liable to pay for the sprinkling of any street or alley crossing, but 
the total cost of such sprinkling shall be paid for by abutting prop- 



435 EXECUTIVE OFFICERS AND DEPARTMENTS. § 472 

erty holders, and such assessments shall be liens upon abutting 
property as of date of the letting of the contract: Provided, That the 
city council of any such city may by ordinance provide that such 
sprinkling of the streets and alleys of such city shall be paid out of 
the general funds of the treasury of such city, and when any such 
ordinance shall be adopted by the city council of any such city, then 
and in that event no assessment shall be made upon abutting prop- 
erty for the cost of any such sprinkling, and in letting the contract 
for such sprinkling it shall not be necessary for the board of pub- 
lic works to hear remonstrances. The cost of such sweeping or 
cleaning shall be paid by such cit}^ out of funds of . the treasury. 
Such board in its annual estimate of the amount of money needed 
by it for the ensuing fiscal year shall include as an item thereof an 
estimate of the amount of money needed for such sweeping or clean- 
ing, and in the event that such city shall by ordinance provide for the 
cost of such sweeping to be paid out of the general funds of the treasury 
of such city, then such board shall also include the costs thereof as an 
item in its said annual estimate, and the common council shall in the 
ordinance fixing the tax levy for each year fix the same so as to create 
a fund for such purpose equal to the amount of such estimate, as it 
may have been revised by the comptroller under the provisions of 
section fifty (50) of the said act hereby amended, and such item shall 
not be reduced by such ordinance after revision by the comptroller. 
Such board may at its option embrace in one order or resolution, and 
also in one contract, any number of streets, alleys or public places for 
which the specifications for such sweeping, sprinkling and cleaning are 
uniform, or such board may include in one resolution and contract such 
streets as to which the specifications for sprinkling, or sweeping, or clean- 
ing are not uniform: Provided, That such contract and the bids therefor 
shall separately state the cost of sprinkling or sweeping and cleaning 
streets or alfeys which are uniform with regard to the specifications 
to such sprinkling, or sweeping, or cleaning. In such cases such 
board may accept part of such bid on one group of streets uniform in 
their specifications and reject other parts of such bids on other groups 
of streets: Provided, further, That all contracts entered into by such 
city prior to the taking effect of this act, for such sweeping and clean- 
ing, which are and shall remain by their terms unforfeited, shall be 
performed and property assessed thereunder for the cost of such sweep- 
ing or cleaning, and such assessment enforced according to the pro- 
visions of law in force at the date of making of such contracts. [As 
amended. Acts 1899, p. 451. In force March 4, 1899.] 

Note. — Acts and proceedings of the departments and officers of the city of Indianapo- 
lis, under §§ 38, 40, 45, 56, 60, 61, 73, 77, 82, 89, 90, 91, 97, 100, 110, 114 and supplemen- 
tal § 136 of this act, as the same were attempted to be amended and enacted by act of 
1895 (Burns' Supp. 1897, §3809, et seq.), were legalized and validated by act of 1899 (Acts 
1899, p. 449). 

Cleaning' streets— Assessments— Police power.— Tender this section as it existed 
prior to the attempted amendment of 1895, and under the then provisions authorizing 
the city to contract for sprinkling and sweeping the streets at the cost of the property 



§ 473 CITIES OF MORE THAN ONE HUNDRED THOUSAND. 436 

holders abutting on such streets, an assessment made against an owner of property 
along a street required to be swept to pay the expense of such sweeping, is not a 
tax but a local assessment, and does not fall within the constitutional provision requir- 
ing equal and uniform rate of taxation. Such assessment does not amount to a taxing 
of private property without compensation, and without due process of law, and the 
assessment in such case is made in the exercise of police powder. Eeinken v. Fuehring, 
130 Ind. 382. 

Sweeping" street crossing's. — The fact that the statute, as it then existed, contem- 
plated the sweeping of crossings, did not render it invalid, as it can not be said that 
the property owner did not receive a special benefit from keeping them clean. Eeinken 
V. Fuehring, 130 Ind. 382. 

General tax— Cleaning' other streets.— As the property ow^ner is fully compensated 
for his outlay in the enhanced value of his property, he may be taxed generally also 
with the remainder of the public for cleaning other streets in which the public alone 
have an interest. Eeinken v. Fuehring, 130 Ind. 382. 

Sprinkling' assessment — Lien.— A sprinkling contractor has a lien on property as- 
sessed for sprinkling, including interest, cost and reasonable attorney's fees, Pahner 
V. Nolting, 13 App. 581. 

4:73. Collection of sprmkling assessments. — 91. The duties of the 
department of finance and of the treasurer, the riglits of contractors, 
and the liabilities of such city in relation to such street sprinkling 
assessments, shall be the same as in the case of street improvement 
assessments, and all the provisions of section 82 of this act respecting 
street improvement assessments including foreclosure by suits, and the 
recovery of interest, cost and attorney fees, so far as applicable, except 
as otherwise herein provided, shall apply to such sprinkling assessments. 
Such sprinkling assessments shall be payable on the first Monday in 
November for any one year, in the manner that street improvement 
assessments are payable. The provisions of this act in relation to the 
payment of street improvement assessments by installments, and the 
issuing of bonds to anticipate the same, shall have no application to 
street sprinkling assessments: Provided, however, That the provisions 
of this section shall not apply to street sprinkling when the cost there- 
of is required by ordinance to be paid out of the general funds in the 
treasury of such city. [As amended, Acts 1899, p. 451. In force 
March 4, 1899.] 

Demand. — Prior to amendment of 1895, a demand was not a prerequisite to an action 
for the collection of a street sprinkhng assessment. Myers v. Indianapolis, etc., Co.^ 
12 App. 170. 

Lamp Posts. 

474. Contracts and costs for lamp posts. — 92. Whenever such 
board of public works shall order any street, alley or public place, to 
be supplied with lamp posts, by the construction of the same, it may 
by resolution order the same without publication or notice, or the hear- 
ing of remonstrances. Contracts for the same may be let, like other 
contracts, and the cost thereof assessed against the holders of abutting 
property, as the cost of street sprinkling, and the same shall be col- 



437 EXECUTIVE OFFICERS AND DEPARTMENTS. § 475 

lected, and the department of finance and the treasurer shall perform 
the same duties, and the contractor shall have the same rights, as in 
the case of street sprinkling assessments. R. S. 1894, § 3863. 

D. DEPARTMENT OF PUBLIC SAFETY. 

4:75. Board of public safety — Appointment — Salary.— 93. The de- 
partment of public safety shall be under the charge of a board of three 
commissioners, to be appointed by the mayor of such city as hereinbe- 
fore provided. No more than two of said commissioners shall be of 
the same political party. Said commissioners shall give bond to such 
city, to be approved by and filed with the department of finance, for 
the faithful performance of their duties respectively, as required by 
ordinance. Said board shall have the care, management and super- 
vision, and exclusive control of all matters relating to the fire and po- 
lice force, fire-alarm, telegraph, erection of fire-escapes, inspection of 
buildings and boilers, market places, and food sold therein, pounds 
and prisons. Said board shall have power to purchase all necessary 
supplies and apparatus, and make all repairs needed in its depart- 
ment, subject to the same provisions as are herein prescribed for the 
exercise of similar powers by the department of public works. Said 
commissioners shall receive annual salaries of $600 each. R. S. 1894, 
§ 3864. 

Fire department and metropolitan police and fire department under the g-eneral 
law. — See ante, §§ 256, et seq., 296, et seq, and notes. 

Police property — Injunction. — Where it is sought to take possession of the pohce 
property of the city, without authority of law, those in possession may protect their 
rights and the rights of the city by injunctipn. City of Huntington v. Cast, 149 Ind. 
255. 

476. Rules— Quorum— Cliairman — Clerk.— 94. Said commission- 
ers shall adopt rules for the appointment of members to said fire and 
police forces, their regulation and duties, subject however to the laws 
of the state and to the ordinance of the common council. Any two 
of said commissioners shall constitute a quorum. Said commissioners 
shall adopt rules and regulations with regard to the time of the hold- 
ing regular and called meetings and of giving notice thereof. They 
shall elect one of their number as chairman, w^ho shall hold such po- 
sition as long as may be prescribed by the rules of said board. Said 
commissioners shall cause all of their proceedings to be carefully re- 
corded by a competent clerk, who shall give bond for the faithful 
performance of his duties, to be approved by such board in such sum 
as may be fixed by ordinance. They shall only act as a board, and 
no member thereof shall have power to bind said board, or such city, 
except pursuant to a resolution of such board authorizing him to act 
in that behalf as its authorized agent. Said commissioners shall have 
the care and charge of all property of every kind pertaining to the fire 
and police force, and to the market places, pounds and prisons of 
such city. R. S. 1894, § 3865. 



§ 477 CITIES OF MORE THAN ONE HUNDRED THOUSAND. 438 

477. Duties of board. — 95. Said commissioners shall appoint a su- 
perintendent of police, chief of the fire force, and all other officers, 
members and employes of said fire and police forces, together with a 
market master, station-house keeper, and other officials necessary for 
such department of public safety. The annual pay of such appointees 
shall be fixed by ordinance of the common council, and it shall be 
lawful in such ordinance to grade the members of such forces and to 
regulate their pay, not only by rank, but by their length of service. 
In default of any ordinance fixing the compensation for any member 
of such fire or police force, said commissioners shall have power to 
fix the same subject to change by ordinance by said council. Said 
commissioners of public safety may also fix the number of members of 
said fire and police forces, and the number of appointees for other 
purposes. Said commissioners of public safety shall, in like manner, 
divide such city into police precincts and fire districts. Said commis- 
sioners shall also have power to make and promulgate rules and regu- 
lations for the appointment of members to such forces, and for their 
government: Provided, That said forces shall be as nearly as possible 
equally divided politically, and no member thereof shall be dismissed 
except for cause as hereinbefore provided. Tlie superintendent of 
police shall have exclusive direction and control of the police force, 
and the chief of the fire force shall have exclusive control and charge 
of such fire force, subject to the rules, regulations and orders of said 
department of public safety. In times of peril, danger, riot, extensive 
conflagration, disorder, or the apprehension thereof, said chief of the 
fire force and the superintendent of the police force shall, for the time 
being, be subordinate to the mayor and obey his orders and directions, 
anything to the contrary in this act or in the ordinances of such city, 
or in the regulations or orders of such commissioners of public safety, 
to the contrary notwithstanding. R. S. 1894, § 3866. 

478. Members of fire and police force. — 96. Every member of the 
fire and police force, and all other appointees of the commissioners of 
public safety, shall hold ofiice until they are removed by the board. 
They may be removed for any cause other than politics, and the writ- 
ten reasons for such removal shall be entered upon the records of such 
board. R. S. 1894, § 3867. 

479. Cliarges against firemen and policemen — Hearing. — 97. On 
conviction of a member of the said fire or police force for any crimi- 
nal offense or neglect of duty, or of violation of rules, or neglect or 
disobedience of orders, or incapacity, or absence without leave, or con- 
duct injurious to the public peace or welfare, or immoral conduct, or 
conduct unbecoming an officer, or other breach of discipline, said 
commissioners shall have power to punish the offending party by rep- 
rimand, forfeiture, suspension without pay, dismissal, or by reducing 
him to a lower grade and pay. Upon any investigation of the con- 
duct of any member of the fire or police force, or upon the trial of any 
charge preferred against any member thereof, said board of commis- 
sioners shall have power to compel the attendance of witnesses, and 



439 EXECUTIVE OFFICERS AND DEPARTMENTS. § 480 

the production of books, papers and other evidence, at any meeting 
of such board, and for that purpose may issue subpenas, and cause 
the same to be served and executed in any part of the county where 
such city is located. The provisions of this act in respect to any wit- 
ness who shall refuse to testify, or to produce books or papers in his 
possession or under his control, in investigation and impeachment 
proceedings before the common council, or any committee thereof, so 
far as applicable, shall govern in like cases before said board, and the 
proper court may compel by attachment, commitment, or other pun- 
ishment, compliance with its orders. [As amended, Acts 1899, p. 
451. In force March 4, 1899.] 

4:80. Powers of policemen. — 98. The officers and members of such 
police force shall possess all the common law and statutory powers of 
constables, except in relation to the service of civil process, and any 
warrant of search or arrest, issued by any judge, or magistrate, or 
justice of the peace of this state, may be executed in any part thereof 
by any member of said police force, subject to the laws of this state 
governing arrests and bail. The members of such police force shall 
have the exclusive power, and it shall be their duty to serve all pro- 
cess within such city issuing from the police court. They shall be 
conservators of the peace in such city, and shall arrest without process 
all persons who within view commit any crime or misdemeanor con- 
trary to the statutes of this state, or ordinance of such city, take them 
before the police court or judge of such city, or other officers having 
jurisdiction of the offense with which such person is charged, and re- 
tain them in custody until the cause of such arrest has been investi- 
gated, suppress all breaches of the peace within their knowledge, and 
authority is hereby given to them to call to their aid the power of such 
city; to pursue and commit to jail all felons and persons guilty of mis- 
demeanors or crimes in violation of the statutes of this state or of the 
ordinances of such city. They shall have the exclusive power, and it 
shall be their duty to serve all process issued by the common council, 
or any committee thereof pursuant to this act, or by any of the execu- 
tive departments of such city. They shall attend upon the police 
court and assist the bailiff to preserve order in such court. R. S. 1894, 
§ 3869. 

Powers and duties of city marshal, police officers, constables, etc., under the general 
law of 1867, see ante, §§94, 95 and notes. 

481. Duties of policemen. — 99. The members of the police force, 
under the direction of the superintendent thereof, shall conve}^ pris- 
oners to and from the county jail or station-houses of such city for 
arraignment or trial in the police court, or to the house of correction, 
work-house, reform school, county jail or other place of punishment 
or imprisonment, under judgment, sentence, order, process of such 
court. R. S. 1894, § 3870. 

482. Additional lire and police force. — 100. Said commissioners 
sjiall have power, on application of any person or corporation, if 



§ 483 CITIES OF MORE THAN ONE HUNDRED THOUSAND. 440 

deemed expedient, to detail regular patrolmen of the police or fire 
force, or appoint and swear any additional number of special police- 
men or firemen, to do special duty at any place within such city, or 
within the county wherein such city is located, upon such person or 
corporation paying for the use of such city the same rate per diem of 
service on such detail of special duty as is paid to the regular mem- 
bers of the force, and shall have power when deemed expedient, to 
make such detail without application of any person or corporation or 
payment of per diem. Such special patrolmen shall be subject to the 
superintendent, and such special firemen to the chief of the fire force. 
They shall obey the rules and regulations of their respective depart- 
ments, conform to its discipline and orders, and wear such dress or 
badge as the commissioners may direct, and shall, during the term of 
their appointment, possess all the powers, privileges and duties of 
regular patrolmen or firemen. Such persons so appointed may be re- 
moved at any time by said commissioners without notice and without 
assigning any cause. Said commissioners may, also, upon an emer- 
gency or apprehension of riot, tumult, mob or insurrection, pestilence, 
or invasion, appoint as many special patrolmen as may be desirable, 
to be paid the same rate per day and possess the same powers, privi- 
leges, and duties as members of the regular force, and be subject to 
the same ordinances, regulations and orders. Such patrolmen and 
firemen shall wear badges, furnished by their respective departments. 
Such commissioners may also detail members from the regular forces 
for the use of the department of public health, or any department of 
the city government. [As amended, Acts 1899, p. 451. In force 
March 4, 1899.] 

483. Oaths — Who may administer. — 101. Said commissioners and 
superintendents of fire and police are authorized to administer oaths 
to any person summoned in any proceeding authorized by this act, or 
to take any depositions under the rules, regulations, or orders of said 
department of public safety. R. S. 1894, § 3872. 

484. Duties of police force. — 102. It is hereby made the duty of 
said police force, at all times within such city, and the members thereof 
are specially empovrered, to preserve peace, prevent crime, detect and 
arrest offenders, suppress riots, mobs and insurrections, disperse un- 
lawful and dangerous assemblages, and assemblages which obstruct 
the free passage of public streets, sidewalks, parks and places, protect 
the right of persons and property, guard the public health, preserve 
order at elections and public meetings, direct the movement of teams 
and vehicles in streets, alleys or public places, remove all nuisances 
in public streets, parks or highways, arrest all street beggars, provide 
proper police assistance at fires, assist, advise and protect strangers 
and travelers in public streets or at railroad stations, carefully observe 
and inspect all places of business under license, or required to have 
the same, all houses of ill-fame or prostitution, and houses where com- 
mon prostitutes resort or reside, all lottery or policy shops, all gam- 
bling houses, cock pits, dance houses, resorts, and to suppress and 



441 EXECUTIVE OFFICERS AND DEPARTMENTS. § 485 

restrain all unlawful or disorderly conduct or practices, enforce and 
prevent the violation of all ordinances and laws in force in such 
city. The superintendent of police and each* captain in his precinct 
shall possess the power of supervision and inspection over all pawn- 
brokers, venders, junk shop keepers, cartmen, expressmen, dealers in 
second-hand merchandise, intelligence offices and auctions, and any 
member of such force may be authorized by the superintendent to ex- 
ercise the same powers, by authority in writing. Said superintendent 
or any captain may, by written authority, empower any member of 
such police force, w4ien in seach of stolen property, of evidence, or of 
suspected offenders, to examine the books, business, or premises of 
any of the persons named in this section, and to examine property in 
whosesoever possession the same shall be. R. S. 1894. § 3873. 

485. G-amiiig. — 103. If any member of such force, or if any two 
or more householders in such city, shall report in writing, under his 
or their signature, to the superintendent of police, that there are good 
grounds (and stating the same) for believing that any house, room or 
premises within such city is kept or used as a common gaming-house, 
room or premises for therein playing for wagers of money at any game 
of chance, or to be kept for lewd or obscene purposes of amusement, 
or for the deposit or sale of lottery tickets or policies, it shall be law- 
ful for said superintendent to authorize any member or members of 
said police force, in w^riting, to enter the same, w^ho shall forthwith 
arrest all persons there found offending against law, and seize all in- 
struments of gaming, or lottery tickets, and deliver the same to the 
superintendent, who shall destroy them. R. S. 1894, § 3874. 

486. Arrest and trial of offenders. — 104. Whenever any arrest 
has been made by any member of such police force, it shall be the 
duty of the officer in making the arrest to forthwith bring the person 
arrested before the police court, or court having jurisdiction thereof, 
to be dealt with according to law. If the arrest is made during the 
hours when such court is not in session, or if the judge is not holding 
court, such offender shall be detained in the city prison until there 
shall be an opportunity for such hearing at the earliest practicable 
time, or until he shall have given bond for his appearance. And no 
person shall be detained longer than tw^enty-four hours without such 
examination, except where Sunday intervenes, in which case no per- 
son shall be detained [longer] than forty-eight hours. Any person 
or corporation who shall interfere with said commissioners of public 
safety, or their appointees in the legal discharge of their duties, shall, 
upon conviction, be fined not more than one thousand dollars ( $1,000 ) , 
to which iliay be added imprisonment for not more than ninetv (90) 
days. R. S. 1894, § 3875.^ 

487. Political work prohibited — Penalty. — 105. It shall be un- 
lawful for said commissioners of public safet}^, or any persons appointed 
by them or their predecessors, or holding any position on said fire or 
police force, to solicit any person to vote at any election for any can- 
didate, or to challenge any voter, or in any manner attempt to infiu- 



§ 488 CITIES OF MORE THAN ONE HUNDRED THOUSAND. 442 

ence any elector at such election, or to be a delegate or candidate for 
delegate to any political convention, or to solicit for any candidate for, 
or delegate to such convention, or to be a member of any political 
committee. Any person violating the provisions of this section shall 
be fined in any sum not exceeding five hundred dollars, to which may 
be added imprisonment for a period not exceeding six months. R. S. 
1894, § 3876. 

488. Bonds of appointees. — 106. Said commissioners shall have 
power, subject, however, to city ordinances, to adopt rules regulating 
the giving of bond by any appointee or class of appointees in such de- 
partment for faithful performance of official duty. R. S. 1894, § 3877. 

489. Insurance fund.— 107. Said commissioners may at any time 
draft an ordinance and submit the same to the common council, who 
shall have power to enact the same like other ordinances, for the cre- 
ation, management and distribution of a police insurance fund, or of 
a firemen's insurance fund, together with a provision for retaining a 
per cent, of each appointee's salary, for the creation of such fund, and 
prescribing the conditions of its investment and who shall be entitled 
to the benefit thereof. R. S. 1894, § 3878. 

See post, §§ 1476, et seg. and 1493, et seq. 

E. DEPARTMENT OF ASSESSMENT AND COLLECTION. 

490. Treasurer and assessor. — 108. The treasurer of the county 
in which the city is located shall be ex officio assessor and treasurer 
for such city, and head of the department of assessment and collection. 
Nothing herein shall be deemed to repeal the provisions of *'An act 
concerning taxation for city and school purposes in cities containing 
a population of over seventy thousand, as shown by the last census of 
the United States; to abolish the offices of city treasurer and assessor 
in such cities, and provide for the discharge of the duties of such 
offices, and repealing laws in conflict therewith," approved February 
21, 1885, as to cities with respect to which this act is applicable, ex- 
cept so far as the provisions of this act are inconsistent therewith. 
R. S. 1894, § 3879. 

Treasurer's duties under the general law of 1867, see ante, §§ 97-WS, post, §1060 and 
notes. 

County treasurer— Loaning" county funds — Recovery— Public policy. — A county 
treasurer who loans the county funds in violation of § 2019, E. S. 1894 {post, §1412), can 
not maintain an action for the recovery of the same, although the county itself might 
maintain such action. An action to recover the same can not be maintained on the 
ground of public policy when it does not appear from the pleadings that other interests 
than those of the parties to the contract are concerned. Winchester, * etc., Co. v. 
Veal, 145 Ind. 506. 

491. Duties of head of department of finance. — 109. The duties 
of the head of the department of finance shall be the same as those 
imposed upon the city clerk by the provisions of the act of 1885, 
named in the preceding section, subject to the provisions of this act. 
R. S. 1894, § 3880. 



p 



443 EXECUTIVE OFFICERS AND DEPAKTMENTS. § 492 

492. Salary of treasurer in cities of one hundred thousand. — 110. 
The county treasurer, in lieu of his annual salary as provided by the 
act of 1885, shall receive an annual salary of the sum of eighty-five 
hundred ($8,500) dollars, and in addition thereto shall receive five 
per centum of the amount of delinquent taxes collected by him, said 
per centum to be calculated on the original amount of the tax so col- 
lected as charged on the duplicate, and not including interest or pen- 
alty. No other percentage or allowance shall be made to said treas- 
urer, either directly or indirectly, for his services for said city. The 
treasurer shall keep an account of the money received by him for taxes 
due the city, and on the first day of each month he shall receipt to 
the comptroller for the amount collected by him as aforesaid for the 
preceding month, which amount shall at once be available for the 
city's use. [As amended, Acts 1899, p. 451. In force March 4, 
1899.] 

493. Pay for assessment. — 111. The county in which such city 
is located shall receive as such city's proportion for such township 
assessor's work, annually, the sum of twenty-five hundred dollars 
($2,500), in full payment and discharge of all services by said as- 
sessor or his deputies, or other persons, with respect to such city's 
share in the making of such assessment, and no other compensation 
shall be allowed such assessor or his deputies, directly or indirectly, 
by such city. R. S. 1894, § 3882. 

4:94c. Penalty for treasurer or assessor receiving pay. — 112. Any 
county treasurer or his deputy, or any township assessor or his deputy 
who shall directly or indirectly ask or receive any compensation from 
such city other than is expressly allowed by this act, shall be liable 
to be fined in any sum not exceeding five thousand dollars ($5,000), 
to which may be added imprisonment not exceeding one year. Any 
councilman of such city who shall propose any appropriation for such 
treasurer or assessor, or any deputy or either of them, shall be subject 
to the same penalty previously mentioned in this section. R. S. 
1894, § 3883. 

495. Failure to perform duties — Remoyal.— 113. Whenever any 
county treasurer or township assessor shall fail to faithfully, fully 
and promptly discharge any duty imposed upon him by this act or by 
the act hereinbefore referred to, approved February 21, 1885, he shall 
be liable to impeachment and removal from office, and to damages for 
such failure, for which damages his bondsmen shall be liable. Such 
impeachment may be instituted by such city by filing a complaint in 
the circuit or superior courts of the county in which such city is lo- 
cated. Such causes shall be tried as other civil causes are tried, and 
a removal from office may be decreed and damages may be awarded. 
The bondsmen of such officer may be made co-defendants in the suit, 
in case such city seeks to recover damages. R. S. 1894, § 3884. 



§ 496 CITIES OF MORE THAN ONE HUNDRED THOUSAND. 444 

DEPARTMENT OF HEALTH AND CHARITIES. 

496. Board of health and charities — Appointment— Salary — Duties 
— Sanitarian — Duties — Sanitary officers. — 114. The department of 
health and charities shall be under the control of a board of three 
commissioners, who shall be physicians in good standing, to be ap- 
pointed by the mayor as hereinbefore provided. Said commissioners 
shall each receive a salary of one hundred ($100.00) per year. Said 
board shall have power to purchase all necessary supplies and appa- 
ratus, and make all necessary repairs in the department, subject to the 
same provisions as are herein prescribed for the exercise of similar 
powers by the department of public works. They shall have charge 
of all matters relating to the public health and the enforcement of laws 
in relation thereto, including the charge of the city hospital, city dis- 
pensary and aU other city charities; they shall keep a careful record of 
all their proceedings. Said commissioners shall appoint a superintend- 
ent of the city hospital and also a superintendent of the city dispensary, 
who shall have control and management of each thereof. Said commis- 
sioners shall appoint a city sanitarian, who shall be a doctor of medi- 
cine, and well informed in sanitary science, whose salary shall not ex- 
ceed $2,000.00 per annum, which salary shall be fixed by the said 
commissioners, subject to the approval of the mayor: Provided, That 
it shall not exceed the sum of two thousand dollars ($2,000) per an- 
num. Said sanitarian shall not engage in any other business, or oc- 
cupation or profession. Said sanitarian shall at all times be under 
the direction and control of said commissioners in the performance of 
his duties. He shall be secretaxy and executive officer of said board, 
and attend to the proper registration of births, marriages, and deaths 
and such other statistical information as the department of public 
health and charities may require. He shall have the immediate con- 
trol and direction of the sanitary police force, and in connection there- 
with shall make all necessary sanitary surveys and inspections, and 
he shall also make and superintend in relation to the sanitary condi- 
tion of the city, such chemical, histological, pathological and other 
investigations as shall be deemed advisable by the commissioners, 
shall have charge of the office occupied by the commissioners, and 
shall carry out and perform all such orders and directions as the said 
commissioners may require him to do, and shall keep all the records 
of the same, and shall render to the commissioners a full report of all 
matters pertaining to his office, monthly, and also an annual report in 
like manner at the close of each calendar year. It shall be the duty 
of the said commissioners, with the advice and assistance of the sani- 
tarian, to prepare such ordinance or ordinances as shall make the de- 
partment effective in the prevention and suppression of disease, and 
submit the same to the cit}^ council for passage as are other ordinances. 
Said sanitarian may be removed at any time for incompetency or neg- 
lect of duty. 

Said commissioners shall nominate for appointment by the depart- 



445 EXECUTIVE OFFICERS AND DEPARTMENTS. § 497 

ment of public safety, as special sanitary officers, skilled and compe- 
tent persons for live stock and meat inspectors and food inspectors, 
whose duty it shall be to inspect all live stock, meat, and food offered 
for sale for human food in such city, and to attend the public markets 
and carefully watch over the same and prevent the selling or offering 
to sell for human food any and all articles unfit for use, and said com- 
missioners are hereby authorized to require from the department of 
public safety special details of policemen or firemen to execute orders 
for the department of public health whenever needed. 

Said department of public safety shall detail policemen who shall 
be constantly subject to the order of the department of health. 

In case of disagreement as to the number or duration of service of 
such details of firemen and policemen, or the number of sanitary offi- 
cers required between said two departments, the mayor shall decide 
the question. [As amended. Acts 1899, p. 451. In force March 4, 
1899.] 

Note. — Acts and proceedings of the departments and officers of the city of Indianap- 
oUs, under §§ 38, 40, 45, 56, 60, 61, 73, 77, 82, 89, 90, 91, 97, 100, 110, 114 and supple- 
mental § 136 of this act, as the same were attempted to be amended and enacted by 
act of 1895 (Burns' Supp. 1897, §3809, et seq.), were legahzed and validated by act of 
1899 (Acts 1899, p. 449). 

497. Health ordinances — Plumbing inspector. — 115, Said health 
commissioners are hereby authorized and directed to prepare ordinances 
for the protection of public health, for securing the proper registration 
of births, marriages and deaths, and such other statistical information 
as the department may require, with penalties for their violation; for 
the removal and burial of the dead, the maintenance of an ambulance 
service for the speedy removal of sick and needy persons, for the 
efficient regulation and management of the city hospital and city dis- 
pensary as may seem to them desirable, and the destruction or fumi- 
gation of infected property or premises, for the registration of plumb- 
ers and the inspection of plumbing and house drainage in all buildings, 
both public and private, erected after the passage of this act, and in 
all buildings, both public and private, erected prior thereto wherein 
changes in or additions to the plumbing or drainage are to be made, for 
the appointment of an inspector of plumbing and house drainage, who 
shall be a practical plumber, who shall be required to pass an exami- 
nation as to his qualifications by a board of three practical plumbers 
doing business and residing in such city, said board to be selected by 
the health commissioners of such city; such ordinances shall be sub- 
mitted to the council for passage as other ordinances. R. S. 1894, 
§ 3886. 

DEPARTMENT OF PUBLIC PARKS. 

[Acts 1899, p. 386. In force March 4, 1899.] 

498. Board of park commissioners — Appointment — Oath of mem- 
bers. — 1. That all cities of this state which had a population of more 



§ 499 CITIES or more than one hundred thousand. 446 

than one hundred thousand inhabitants as shown by the last preced- 
ing United States census, shall be governed by the provisions of this 
act. That in addition to the executive departments now established 
by law in such cities there is hereby established as one of the execu- 
tive departments of such city a ''department of public parks," which 
shall be under the control of a board of four (4) members, two and 
not more than two of whom shall be of the same political party, to be 
appointed by the mayor of such city, and to be known as the ''board of 
park commissioners," and who shall serve without compensation, ex- 
cept their actual expenses, to be approved by the mayor, and when- 
ever the words "said board" are used in this act it shall be under- 
stood to mean the said board of park commissioners, provided for by 
this act. Each and every member of the said board shall, before 
entering upon the duties of office, take and subscribe an oath, to be 
indorsed on the back of the certificate of appointment before some 
officer authorized to administer the same, to support the constitution 
of the United States, and the constitution of the state of Indiana, and 
to faithfully and honestly discharge all official diities as a member of 
said board, and cause the same to be filed with the city clerk of such 
city. Any person who shall not file such oath with the city clerk as 
herein provided within twenty days after the beginning of the term 
for which appointed or the date of appointment, if appointed after the 
beginning of such term, shall be deemed to have refused to serve and 
the office shall be deemed to be vacant. 

Act of 1895 miconstitiitional— Tenure of office. — The act approved March 1, 1895 
(Burns' Supp. 1897, § 3904«, etseq.), creating a department of public parks in cities 
having a population of more than 100,000, and providing that the board of park com- 
missioners shall hold office for the term of five years, was in violation of the inhibition 
of § 2, art, 15, of the state constitution, that "the general assembly shall not create any 
office the tenure of which shall be longer than four years," and was void. Indianapolis, 
etc., Co. V. Claypool, 149 Ind. 193. 

Parks. — For parks under the general law applicable to smaller cities, see ante, § 347, 
et sea, and notes, scn&post, § 1142, et seq. and notes. 

499. Terms of office. — 2. The first members of said board shall hold 
office respectively, as follows: One for the term of one year, one for 
the term of two years, one for the term of three years and one for the 
term of four years, from and after the first day of January, 1899, and 
annually thereafter, on the expiration of the respective terms afore- 
said the mayor shall appoint a commissioner or commissioners to fill 
the vacancies caused by such expirations, and the commissioner or 
commissioners so appointed shall hold office for a term of four years, 
beginning with the first day of January in the year of appointment, 
and if any vacancy occurs in said board by resignation or otherwise 
the mayor shall appoint one or more commissioners for the residue of 
the term, or terms, and may also remove any commissioner, but only 
upon his filing in writing with the city clerk his reasons for such re- 
moval. 



447 EXECUTIVE OFFICERS AND DEPARTMENTS. § 500 

500. Chairman — Clerk — Employes — Removals — Duties and compen- 
sation. — 3. The said board shall choose one of its members chair- 
man, and may from time to time appoint a clerk and such other em- 
ployes as it deems necessary to carry out the purposes of this act; it 
may determine the duties and compensation of such appointees and 
may remove such appointees at pleasure, and make all reasonable 
rules and regulations not in conflict with the laws of the state or the 
ordinances of such city. 

501. Office — Kecords, etc. — 4. Said board shall have a suitable 
office provided for it by such city, where its maps, plans, documents, 
records and accounts shall be kept, subject to public inspection at all 
reasonable times. 

502. Report to mayor — Receipts and expenditures. — 5. On or 
before the first day of February, each year, said board shall make a 
report to the mayor of its proceedings with a full statement of its re- 
ceipts and disbursements for the preceding calendar year. All mon- 
eys received by said board shall be forthwith paid into the city treas- 
ury, and all expenditures relating to said parks, parkways, and public 
grounds, boulevards, driveways and other avenues and places under 
the control of said department shall be provided for in the same man- 
ner as the expenditures of the other departments are provided for and 
shall be paid from the city treasury when required under the same 
rules and regulations governing the expenditure of other departments 
of such city. 

503. Quorum. — 6. A majority of the members shall constitute a 
quorum, and no action of said board shall be binding unless author- 
ized by a majority of the members at a regular or duly called special 
meeting thereof and such meeting shall be open to the public. 

504. Superintendent of parks. — 7. Such board may appoint a 
competent superintendent of parks, who shall, under the direction of 
said board, have active charge, control and direction of the parks, 
parkways, park boulevards, and public playgrounds of such city. 

505. Grovernment of parks. — 8. The said board of park commis- 
sioners shall have the exclusive government, management and con- 
trol, subject, however, to the laws of. the state and to the powers of 
the common council in relation thereto, of all the parks, parkways, 
park boulevards and public playgrounds, and the full and exclusive 
pov/er to govern and manage the same and all public parks, drive- 
ways and public grounds outside of the city, which may be established 
under the provisions hereof, and shall direct the public use thereof, 
and such parts of the several roads, streets or avenues as run through 
or intersect the same and shall have full power to enforce all laws and 
ordinances for the proper use, regulation and government thereof; 
and for all purposes of such government, maintenance and direction 
of public use such parts of said roads or avenues as pass through said 
public grounds or parks shall be deemed to be a part thereof, and 
shall be under like control and management of said board of park 
commissioners. 



§ 506 CITIES OF MORE THAN ONE HUNDRED THOUSAND. 448 

506. Powers of board. — 9. And the said board of park commis- 
siouers shall have, subject to the limitations aforesaid, full and ex- 
clusive power: 

First. To acquire, lay out, improve, maintain, and regulate public 
parks, parkways, park boulevards and playgrounds of such city, and 
to govern, manage and direct the public use of the same. 

Second. To make rules and regulations for their proper manage- 
ment and government. 

Third. To appoint such engineers, surveyors, clerks and other 
officers as they may deem expedient, and to prescribe and define their 
respective duties and authorities, and to fix and regulate the compen- 
sation to be paid to the several persons so to be employed by them, 
and the said board of park commissioners are hereby authorized to 
require from the department of public safety of such city a special 
detail of police to execute the orders and enforce the rules and regula- 
tions made by said board of park commissioners and thereupon said 
board of public safety shall detail policemen w4io shall be constantly 
subject to the orders of said board of park commissioners. In case of 
disagreement between said two departments as to the number or dura- 
tion of service of such details of policemen, the mayor shall decide 
the question. 

Fourth. To locate, erect and maintain fountains on said parks or 
either of them, as well as the streets and avenues which form the 
boundaries thereof or intersect the same; and to erect and. maintain 
suitable fences around said parks. 

Fifth. To seize and impound any cattle, sheep, swine, goats, horses, 
geese, or any other animals found running at large on any of the pub- 
lic parks of such city as shall be provided by ordinance of such city, 
and to establish suitable places for such impounding. 

Sixth. To let and lease any buildings or grounds belonging to such 
city which may lie wuthin the limits of any park, until the same shall 
be required for public use; and to sell any buildings, improvements 
or materials within the limits of any park and belonging to the city, 
which, in the judgment of the said board of park commissioners, may 
not be required for the purposes of said park, or for public use, and the 
proceeds thereof shall be deposited with the city treasurer to the credit 
of said department and devoted to the improvement of such parks. 

507. May bring actions. — 10. They may also, in the name of the 
city, bring any action w^hich they deem proper to recover damages 
for the breach of any agreement, express or implied, relating to 
or growing out of the management or improvement of said parks, 
streets, boulevards and driveways under their control, and for penal- 
ties for the violation of any ordinance, and for injury to the personal 
or real property appertaining to the parks, streets, boulevards, drive- 
ways or other territory belonging thereto, and to recover the posses- 
sion of any such property. 

508. Charge of parks — Rules and regulations, — 11. The said board 
shall have charge and management of such park lands taken for such 



449 EXECUTIVE OFFICERS AND DEPARTMENTS. § 509 

purposes, pursuant to the statutes of this state, and all rules and regu- 
lations which such board shall at any time adopt, under and in pur- 
suance of the provisions herein contained shall be published for at 
least ten (10) days in a daily newspaper printed in such city. 

509. Authority of board — Expenditures. — 12. The said board 
shall have full, complete and exclusive authority, subject to the laws 
of the state, and the powers of the common council relating thereto, to 
expend for and on behalf of the city all sums of money appropriated by 
the city council from the general revenues of the city for the same pur- 
poses; and all money that may be realized by said board of park com- 
missioners from the sale of privileges in the parks of such city, or 
from any other source, or realized from the sale of bonds of the city, 
and set apart for park purposes, and the common council of such city 
shall from time to time appropriate out of the general revenues of the 
city a stated sum to be set apart for the use of the department of pub- 
lic parks, and may borrow money for the use of said department of 
public parks and may issue the bonds of the city therefor as provided 
by law for the general purposes of such city, but the said board shall 
have no power to contract debts beyond the amount so appropriated. 

Contracts in excess of amount appropriated.— See ante, § 432 and notes. 

510. Francliises for railway prohibited. — 13. No franchise shall 
be granted by the city authorities for the construction or maintenance 
of any railway lengthwise upon any parkway or park boulevard within 
the limits of any park, or connecting any one park with any other, as 
provided herein. 

511. Sale of park lands — Concerning erection of buildings. — 14. If 
said board should wish to sell any portion of the park lands now 
owned by the city or that may hereafter be acquired, they are hereby 
authorized to prepare an ordinance authorizing such sale and submit 
the same to the city council. If the council shall pass such ordinance 
and the same be signed by the mayor, then the said board shall have 
power to sell the same, and the proceeds of such sale shall be expended 
in the improvement of the remaining park lands or in the purchase 
of other lands for park purposes, as said board ma}" deem for the best 
interests of the city: Provided, That such lands shall not be sold for 
a less sum than the purchase price thereof when acquired by such 
city. Said board may establish a line or lines determining the dis- 
tance at which all structures to be erected upon any of the lots or 
blocks so sold under the provisions of this section, or upon any private 
premises fronting any park, parkway or park boulevard under the 
jurisdiction and control of said board, shall be erected upon such 
premises; and may in the name of the city condemn the right to pre- 
vent the erection of, and to require the removal of, all structures out- 
side of said lines; and when so condemned no permit shall be issued 
authorizing any structure outside of the line so established. The 
establishing of any building line outside of any boulevard or park, or 

CiT. AND To.— 29 



§ 512 CITIES OF MORE THAN ONE HUNDRED THOUSAND. 450 

either, as herein provided in connection with the condemnation of the 
land for the same shall be understood to be the condemnation and the 
perpetual annihilation of all the rights of the owners of property which 
shall front on such park, parkway or boulevard, or across which said 
building line shall run to erect any building whatever or any part 
thereof between such building line and such boulevard, park or park- 
way; or it may be accomplished by absolute condemnation of the land, 
with perpetual and irrevocable free license to use and occupy fifty (50) 
feet in the width of the same for all purposes not otherwise forbidden, 
except buildings, as said board shall determine to be preferable and 
most effective. No subdivision into lots of any lands, lying within 
five hundred feet of such boulevards, or either of such parks or park- 
ways shall be valid without the approval of said board of park com- 
missioners; and they shall also have the powder to forbid by general 
order or rules and to abate an}^ horse racing, gambling, offensive or 
dangerous business or amusements within five hundred (500) feet of 
such boulevards, parks and parkwaj^s, or either of them, and the right 
to use such adjacent lands for any such purpose shall be deemed to be 
included in any gift^ donation or assessment and condemnation above 
provided for. But no lawful business at the time of acquiring such 
lands and carried on upon such adjacent lands shall be prohibited or 
abated without a fair valuation and due and full compensation. 

512, Grants— Conyeyances— Devises, etc., for parks» — 15. Real and 
personal property may be granted, devised, bequeathed or conveyed to 
such city for park purposes or for the improvement or ornamentation 
of any park, play-ground, boulevard, pleasureways, parkways or other 
public grounds, or for the establishment or maintenance therein of 
gardens for horticulture and floriculture and of museums, zoological 
gardens, collections of natural history, observatories, libraries, foun- 
tains, monuments or works of art upon such trust or conditions as 
may be approved by the said board and city council, and all such 
property or the rents, issues and profits thereof shall be subject to the 
exclusive management and control of the said board. Said board shall 
also provide such accommodations for, and take such steps as the 
money at their disposal will justify for the securing and reservation of 
collections of natural history and the establishment of museums in the 
parks of such city. But all such property and the rents, issues and 
profits thereof, must be subject to the management and control of said 
board, and may be improved and added to and changed in its discre- 
tion, and shall be protected, preserved and arranged by said board for 
public use and enjoyment, and under such rules and regulations as 
said board shall from time to time prescribe. 

513. Admission to gardens and museums. — 16. Admission to said 
gardens and museums may be either free to the public, or upon the 
payment of such sums of money as the said board of park commis- 
sioners may determine; and all income to be derived from such ad- 
missions shall be applied to the improvement and maintenance of such 
gardens and museums, or of the said parks. The said board may also 






451 EXECUTIVE OFFICERS AND DEFARTMENTS. § 514 

agree for the management and maintenance of any of said gardens or 
other institution, with any society incorporated, or to be incorporated 
under the law of this state; but such gardens or other institutions shall 
always remain subject to the control of the said board of park commis- 
sioners or those who shall succeed to their duties. 

514. Streams and water-courses witMn city limits — Hules — Eeg- 
ulatioiis — Ordinances. — 17. The said board shall have power to keep 
open rivers and streams or waterways, and to prevent the deposit or 
maintenance of unsightly or obnoxious material in the same or on 
the banks thereof, and to provide for the protection of the banks 
thereof within said city, and to make such rules and regulations con- 
cerning said streams and the banks thereof as shall in their judgment 
be necessary for such purposes, and the common council of said city 
is empowered to provide for the enforcement of said rules by ordi- 
nance with suitable penalties. Said board shall have pov/er to pro- 
vide for the damming or changing the course of any river, stream or 
waterway within the boundaries of any park, so as to provide water 
for use in said parks for sprinkling, boating or other purposes. Also 
to provide pools of water or artificial lakes in such parks; also to con- 
struct all necessary bridges and viaducts over, or tunnels under, riv- 
ers, water-courses or railroads within or bordering on the line of such 
parks, boulevards or pathways. 

515. Power of eminent domain.— 18. The said board of park com- 
missioners are authorized to exercise the power of eminent domain 
within such city, for the purposes of carrying out any of the provis- 
ions of this act. And in case said board of park commissioners can 
not agree with the owners, lessees or occupants of any real estate 
selected by them for the purposes herein set forth, they may proceed 
to procure the condemnation of the same as hereinafter provided, and 
in addition thereto, when not in conflict nor inconsistent with the ex- 
press provisions of this act, may proceed under the general laws of 
the state of Indiana for condemning the right of way for the purposes 
of internal improvement, which may be in force at the time, and the 
provisions of such laws are hereby extended to park boulevards, parks, 
parkways, and park commissioners to be created by this act, so far as 
the same are not in conflict or inconsistent with the terms of this act. 

516. Assessment of benefits and damages — Appraisers— Condemna- 
tion proceedings— Appeal, — 19. Whenever said board of park com- 
missioners shall have determined to have condemned any grounds 
selected by them for the purposes of a boulevard, or shall have selected 
any grounds for such purpose and secured a contract or agreement for 
the same, by purchase or otherwise, they may apply to the judge of 
the circuit court for the county in which the real estate, or the real 
estate to be affected thereby, may be situated, for the appointment of 
three disinterested freeholders of said county as assessors, and there- 
upon such court shall appoint three assessors, qualified as aforesaid 
for the purposes provided in this act. The said assessors shall pro- 
ceed to assess damages and benefits upon the property or appurten- 



§ 517 CITIES OF MORE THAN ONE HUNDRED THOUSAND. 452 

ances thereto belonging, by them deemed to be injured or benefited by 
reason of tlie improvements occasioned by the location and construction 
of such boulevard as near as may be in proportion to the injuries or 
benefits resulting thereto: Provided, That not more than fifty per 
cent, of the cost of any such location and construction in the aggre- 
gate, shall be assessed as benefits, and the remaining cost thereof shall 
be paid out of the general fund of such city: Provided, further, That 
all the said assessments of benefits shall be made upon all of the lots 
and lands situate within six hundred ( 600) feet of the boundary of such 
boulevard in proportion to the benefits received, And provided, further, 
That no assessment of benefits shall be made in excess of fifteen per 
cent, of the value of the lands so assessed exclusive of the improve- 
ments upon the land so assessed. The damages, if any, occasioned 
by the taking or condemnation of the land or easement as aforesaid 
and in general the form and the particulars of such proceedings and 
assessments, when not inconsistent with this act, shall be as near as 
may be, the same as required by the laws in force at the time govern- 
ing such city for the condemnation of land for and laying out of 
streets. Whenever said board of park commissioners shall have deter- 
mined to have condemned any grounds selected by them for park pur- 
poses, they shall proceed to acquire or condemn said grounds in the 
same manner as is herein provided for the condemnation of lands for 
boulevards, except that the entire cost thereof shall be paid out of the 
funds of said city: Provided, That any aggrieved party in such con- 
demnation proceedings shall on appeal to the circuit court be entitled 
to a trial by jury. 

517. Assessments — Notice — Hearing property owners — Assessment 
roll— Confirmation — Assessment lien — Foreclosure.~20. Before en- 
tering upon the duties of their office, said assessors shall make oath 
before the clerk of the said county, faithfully and impartially to dis- 
charge the duties of their offices. They shall give at least ten (10) 
days' notice in at least one of the daily papers published in such city, 
of the time and place for their meeting for the purpose of making 
such assessment, and may adjourn from time to time until the same 
shall be completed. In making such assessment said assessors shall 
estimate the value of the several lots, blocks, and parcels of land 
deemed benefited as aforesaid, and shall include the same, together 
with the amount assessed as benefits, in the assessment roll, and shall 
estimate the damages to the several lots, blocks and parcels of land, 
which shall be taken or injuriously affected by said improvement, and 
shall include the same together with the several amounts assessed as 
damages in said assessment roll. All parties may appear before said 
assessors and be heard touching any matter connected with the assess- 
ment. When the same shall be completed by the said assessors it 
shall be signed by said assessors and returned to said board of park 
commissioners, who shall fix a day upon which they will review, re- 
vise and correct such assessment, and shall give at least ten (10) days' 
notice, by publication in some daily paper published in such city, of 



453 EXECUTIVE OFFICERS AND DEPARTMENTS. § 517 

the time and place when said commissioners will meet and consider said 
assessment. The said commissioners shall have power to adjourn 
such hearing from time to time and in their discretion to revise and 
correct the assessment as to damages, benefits, or otherwise, and con- 
firm or amend the same, or refer the same back to said assessors for 
revisal or direct a new assessment to be made; said assessment, when 
confirmed by said commissioners, shall be final and conclusive upon 
all the parties interested therein, except as hereinafter provided. When 
such assessment is confirmed by said commissioners they shall make 
a copy thereof as corrected by them and file the same together with 
their certificate of confirmation, in the court which shall have appointed 
such assessors; and they shall also file therewith all such objections as 
shall have been made to them, in writing, to said assessment at the 
hearing hereinbefore provided for. Said board shall thereupon give 
at least ten (10) days' notice in one or more of the daily papers pub- 
lished in such city, of the filing of said assessment roll, and that they 
will on a day therein named appl}^ to such court for confirmation of 
the same, which notice shall be published at least ten (10) days' be- 
fore the time fixed for such application. Said court shall have the 
power to revise, correct, amend or confirm said assessment, in whole 
or in part, and may make or order a new assessment, in whole or 
in part, and revise and confirm the same upon like notice. All 
parties may appear before the said circuit court either in person or by 
attorney, when such application shall be made, and may object to said 
assessment, either in whole or in part, provided all objections be in 
writing and shall be filed at least three (3) days before the time fixed 
for application, and shall specify the lot, block or parcel of land, on 
behalf of which objection is made, and any party so objecting shall be 
entitled to a trial by jury of the objection so made. After the con- 
firmation of the said assessment the clerk of the said circuit court shall 
file a copy thereof, under the seal of the said court with the depart- 
ment of finance, and from that time the respective amounts of the 
benefits therein assessed shall severally be liens superior to all other 
liens, except taxes, against the respective lots or parcels of land upon 
which they are assessed. Said department of finance shall at once 
prepare a duplicate of said assessment roll of benefits, the same to be 
known as the local assessment duplicate, and deliver the same to the 
treasurer. The duties of the treasurer and the department of finance, 
in respect thereto, shall be the same, as are, or may be hereinafter 
prescribed by law in such cities with regard to assessments for street 
improvements. Said assessments or benefits shall be due and payable 
to the treasurer from the time of the delivery of said assessment dupli- 
cate to the treasurer. If not paid within sixty (60) days thereafter, 
such city, by its attorney, shall proceed to foreclose the liens in a 
court of competent jurisdiction as mortgages are foreclosed, with simi- 
lar rights of redemption, and have the same sold to pay such assess- 
ments, such city shall recover costs with a reasonable attorney's fee, 
and interest, from the expiration of sixty (60) days, hereinbefore 



§ 518 CITIES OF MORE THAN ONE HUNDRED THOUSAND. 454 

allowed for payment, at the rate of six per cent, per annum. In all 
cases where the party against whom the assessment is made is a resi- 
dent of such city, demand for the payment of the same shall be made 
by delivery to him personally, or leaving at his last and usual place 
of residence, a notice of such assessment and demand for payment: 
Provided, That all persons assessed for benefits may within thirty days 
after the confirmation of such assessments as aforesaid avail themselves 
of the payment of such assessments in installments in the same man- 
ner as provided for the payment of assessments made for the improve- 
ment or paving of streets in such cities. 

518. Benefits and damages — Tender — Payment. — 21. Said board 
of park commissioners shall have power to determine what, if any 
part of the damages awarded, shall be paid out of the funds set apart 
for the use of said board by the common council, or received from 
other sources. All benefits assessed and collected by the treasurer 
shall be subject to draft, in the usual manner, upon certificate by the 
board of park commissioners in favor of the person to whom damages 
may have been awarded. Any surplus remaining above actual awards 
shall belong to the general park fund, and be subject to the control of 
the said board of park commissioners. Said board may delay proceed- 
ings until such benefits have been collected. 

It shall be the duty of the board of park commissioners, upon the 
completion of the award of damages, or whenever the time for delay as 
above mentioned shall have expired, to make out certificates for the 
proper amounts and in favor of the proper persons, upon the presenta- 
tion of which to the head of the department of finance, such persons 
shall be entitled to a warrant on the city treasury. Such certificates 
or vouchers shall, whenever practicable, be tendered actually to the 
person entitled thereto, but where this is impracticable the same shall 
be kept for such persons in the office of the board of park commission- 
ers and the making and fixing of such certificates shall, in all cases, 
be deemed to be a valid and effectual tender to the person entitled 
thereto, and the same shall be delivered to him on request. In case of 
a dispute, or doubt as to which of the various persons said money shall 
be paid, said board shall make out the certificate in favor of the city 
attorney for the use of the persons entitled thereto, and said attorney 
shall thereupon draw the money and pay the same into court in a 
proper proceeding, requiring the various claimants to interplead and 
have their respective rights determined. In any case where an in- 
junction is obtained because damages have not been paid or tendered, 
said board shall tender such certificate for the amount thereof with 
interest from the time of entry upon the property, if any has been 
made, and all accrued costs, and thereupon the injunction shall be 
dissolved. The pendency of an appeal shall not affect the validity of 
a tender made under this section, but such city shall be entitled to 
proceed with its appropriation of the property in question. 

519. Payment for lands. — 22. From the funds derived from such 
assessments and from the other funds of such city applicable to such 



455 POLICE COURT. § 520 

purpose, the said board of park commissioners shall pay to the par- 
ties entitled thereto, the amounts respectively due them for any lands 
so taken. In case said lands or any portion thereof are secured by 
purchase or contract such payment shall be made according to the 
terms of such contract, and in case of any lands taken by condemna- 
tion as herein provided, the amount of damages so assessed shall be 
paid or tendered as herein provided, within ninety (90) days after the 
final determination of the proceedings herein provided, and thereupon 
the title of such lands, ways, building lines, easements, boulevards 
and parks, or' that portion thereof so paid for or otherwise acquired 
for such purpose, shall become fixed and vested in such city in the 
manner, to the extent, for the purpose and subject to the limitation 
hereinbefore provided. 

520, Description of land filed in recorder's office. — 23. Within 
sixty (60) days after any land or right therein is acquired or taken 
under this act, the board shall file and cause to be recorded in the re- 
corder's office of the county in which the land is situated, a descrip- 
tion thereof sufficiently accurate for its identification, with a statement 
of the purpose for which it is acquired or taken, which shall be signed 
by a majority of the board. 

ARTICLE 4.— POLICE COURT. 

SEC. SEC. 

521. Police court. 529. No fees to be received. 

522. Seal — Change of venue. 530. Salary of judge — Payment. 

523. Police judge — Election — Term — 531. Clerk — Bond — Duties. 

Bond — Jurisdiction. 532. Bailiff— Bond — Duties. 

524. Penalties imposed. 533. Salary of bailiff. 

525. Rules — Oaths — Practice — Appeals. 534. Prosecuting attorney — Duties— Fees. 

526. Judge pro tern. — Powers — Docket 535. Witness fees. 

fees. 536. Process — Issue — Service. 

527. Discharge of poor prisoners. 537. Duties of police force. 

528. Vacancy — Appointment. 538. Old officers to continue to act. 

JUDICIAL. 

521, Police court. — 116. The judicial power of such city shal^ be 
Tested in a police court. The officers thereof shall be one judge, a 
clerk, and a bailiff. The style of such court shall be: ''The police 

court of the city of ," according to the name of such city. Said 

court shall be a court of record, and all its judgments, decrees, orders 
and proceedings shall have the same force and effect as those of the 
crimiinal or circuit courts, except that no judgment shall be a lien on 
the real estate otherwise than is provided by taking transcript, and 
the same shall be enforced in the same manner as liens by transcript 
from justices of the peace in similar cases. R. S. 1894, § 3887. 

City court under the §'eneral law.— See ante, § 262, et seq. and notes. 

522, Seal — Change of venue. — 117. The police judge shall pro- 
vide, at the expense of the city, a seal for such court, which shall con- 



§ 523 CITIES OF MORE THAN ONE HUNDRED THOUSAND. 456 

tain on the face the words: ^'Police court of , Indiana," the 

blank to be filled with the name of the city. A description of such 
seal, together with an impress thereof, shall be spread on the records 
of such court. No change of venue shall be taken from such court, 
but any defendant may take a change of venue from the judge thereof 
as is now provided by law relating to criminal and circuit courts. 
R. S. 1894, § 3888. 

523. Police judge — Election — Term — Bond — Jurisdiction. — 118. 
The police judge shall be elected by the legal voters of such city at the 
same time and in the same manner as the other city officers are elected 
for the term of two years and until his successor is elected and quali- 
fied. His term of office shall begin at twelve o'clock noon, on the 
Thursday next after his election. Before entering upon the discharge 
of his duties he shall execute a bond, payable to the city of Indianapo- 
lis, in the penal sum of five thousand ($5,000) dollars, with good and 
sufficient freehold surety, to be approved by the mayor and filed in 
the office of the city comptroller, conditioned for the faithful and hon- 
est discharge of the duties of his office. He shall hold daily sessions of 
the police court, Sundays excepted, at a place within such city pro- 
vided and designated by the common council. He shall have and ex- 
ercise within such county in which such city is located the powers 
and jurisdiction now or hereafter conferred upon justices of the peace 
in all crimes and misdemeanors except as otherwise herein provided. 
He shall have and exercise within such city the powers and jurisdic- 
tion now conferred upon mayors except as herein otherwise provided. 
He shall have exclusive jurisdiction of all violations of the ordinances 
of such city. He shall also have original concurrent jurisdiction 
with the criminal courts in all cases of petit larceny and all other vi- 
olations of the laws of the state where the penalty provided therefor 
can not exceed a fine of five hundred ($500) dollars and imprison- 
ment not exceeding six months, or either or both: Provided, That 
such police judge, in all such cases of petit larceny, if he find the pris- 
oner guilty, shall assess his punishment; or, if, in the opinion of such 
police judge, the punishment he is authorized to assess is not adequate 
to the offense he may so find, and in such case the police judge shall 
hold such prisoner to bail for his appearance before the proper court, 
or commit him to jail in default of such bail. [As amended. Acts 
1895, p. 90. In force March 2, 1895.] Burns' Supp. 1897, § 3889. 

Mayor— Powers and Jurisdiction.— See mite, § 80 and notes. 

524. Penalties imposed. — 119. In the trial of any person in the 
police court for the violation of any law of this state or ordinance of 
such city, the court or jury shall have power to assess a fine in any 
sum not exceeding five hundred dollars ($500), or adjudge imprison- 
ment as a part of the sentence for any time not exceeding six months 
in the county jail, workhouse or other lawfully designated place of 
confinement, either or both. R. S. 1894, § 3890. 

Constitutional law— Creation of court.— The provisions of the Indianapohs charter 



457 POLICE COURT. § 525 

for the creation of a police court are in all respects constitutional and valid ; the crea- 
tion of such court is but an exercise by the legislature of power long recognized as valid 
in the organization of inferior courts. The constitution does not prohibit special acts 
creating couits of inferior jurisdiction. Stevens v. Anderson, 145 Ind. 304; Clem v. 
State, 33 Ind. 418. 

Petit larceny— Fine and imprisonment— Constitiitionality.~The statute gives to 
the police court power to assess, as punishment for a violation of the law, in addition to 
a tine, imprisonment in the county jail or work-house for a time not exceeding six 
months^ and this power is made to apply in particular to the offense of petit larceny. 
This provision is constitutional. The fact that the general statute fixes, as one punish- 
ment for petit larceny, imprisonment in the county jail, fine and disfranchisement, 
while the police court is authorized to impose a fine and imprisonment only, does not 
affect the jurisdiction of the court. Stevens v. Anderson, 145 Ind. 304. 

Jury trial. — The provisions of the statute with respect to the police court do not de- 
prive defendant of his constitutional right of trial by jury guaranteed to him by art. 1, 
§ 13, of the constitution. Stevens v. Anderson, 145 Ind. 304. 

525. Rules — Oatlis — Practice — Appeals. — 120. Such judge shall 
have full power and authority to make and adopt rules and regula- 
tions for conducting the business of said court not repugnant to the 
laws of this state, and shall have all powers incident to the court of 
record in relation to the attendance of witnesses, the punishment of 
contempts, and enforcing its orders, and to issue commissions for 
taking depositions in cases pending in said court. He shall have full 
authority to administer oaths and to give all necessary certificates for 
the authentication of the records and proceedings of said court in the 
matter of changes of venue, arid in the trial of any person charged 
with the violation of any law of this state, such court shall be gov- 
erned as far as may be by the law, rules, practice and pleadings re- 
lating to criminal courts, except where herein otherwise provided, and 
in the trial of any person charged with the violation of any ordinance 
of such city, such court shall be governed as far as may be by the 
laws, rules, practice and pleadings now in force relating to mayor's 
courts, except where herein otherwise provided. Appeals shall be 
from the judgment of said court in criminal cases to the criminal cir- 
cuit court and in civil cases to the superior or circuit courts in the 
same manner that is now provided for appeals from the mayor's court. 
R. S. 1894, § 3891. 

526. Judge pro tem. — Powers — Docket fees. — 121. In case of the 
temporary absence or inability of the police judge to act, he shall ap- 
point any reputable practicing attorney to preside in his absence, and 
such judge pro tem. shall have and possess all the powers and rights, 
and perform and exercise all of the duties of judge of such court as 
fully and completely as the police judge appointing him. It shall be 
the duty of such judge to tax, for the use and benefit of such city, a 
docket fee of five dollars ($5) in each case where a defendant is ad- 
judged guilty of a violation of any law of this state or ordinance of 
such city, which docket fee shall be collectible in the same manner as 
other costs are collected; and no other fees whatever shall be taxed 
against a defendant except as herein provided: Provided, hoiceier, 



§ 527 CITIES OF MORE THAN ONE HUNDRED THOUSAND. 458 

That nothing herein shall prevent the taxing and collection of the 
penalties and fees now provided by law in case of the collection of 
judgments on execution, levy and sale of personal property, but such 
penalties and fees Vv^hen collected shall be for the use and benefit of 
such city. R. S. 1894, § 3892. 

527. Discharge of poor prisoners.— 122. Any person having been 
adjudged guilty of a violation of an ordinance of said city and com- 
mitted therefor may be discharged by such court or judge after said 
defendant has been imprisoned, in addition to the term of imprison- 
ment, if any adjudged against him as a part of the sentence, one day 
for every dollar of such fine and cost, if it appear to such court or 
judge that such defendant is unable to pay or replevy such fine and 
cost, but an execution may issue against the property of the defend- 
ant, as in the case of other judgments. In no such case, however, 
shall the city be liable to any person for costs or fees. R. S. 1894, 
§ 3893. 

528. Yacancy — Appointment. — 123. In the case of a vacancy in 
the office of police judge, the mayor shall appoint a successor, who 
shall hold such office during the unexpired term of his predecessor. 
R. S. 1894, § 3894. 

529. No fees to be received, — 124. The police judge, clerk of the 
police court, or the bailiff thereof, shall not receive any fees, or other 
compensation whatever than their respective salaries. R. S. 1894, 
§ 3895. 

530. Salary of judge — Pa3aiieut, — 125. The salary of the police 
judge shall be two thousand five hundred dollars per annum, payable 
quarterly, as the salaries of other city officers are paid. [As amended, 
Acts 1895, p. 90. In force March 2, 1895.] Burns' Supp. 1897, 
§ 3896. 

531. Clerk— Bond— Duties.— 126. The city clerk shall be the 
clerk of the police court. Before entering upon the discharge of his 
duties he shall execute a bond payable to such city in the penal sum 
of five thousand dollars ($5,000), with good and sufficient resident 
freehold sureties, subject to the approval of the mayor, which bond 
shall be filed with the city comptroller. Such clerk shall have full 
power to administer oaths; he shall issue all process of said court, 
affix the seal of the court thereto, and attest the same. He shall keep 
a true, correct and complete record and docket of all cases and persons 
arrested and brought before the said court, how tried and disposed of, 
and of the fees, fines, penalties, forfeitures, judgments, executions, 
decrees and orders had therein, in the same manner, as nearly as 
may be, as such records are kept by the clerks of the criminal courts. 
He shall collect, pro ecute and receive payments of all such fees, fines, 
penalties and forfeitures, and all judgments and executions and all 
money whatever accruing to or to be paid in for the use of said city 
from the enforcement of any of the laws thereof. At the close of each 
day's session of such court, he shall make out and deliver to the po- 
lice judge a written report of all cases in which he has received or col- 



459 POLICE COURT. § 532 

lected any moneys during said day, and shall forthwith pay over all 
such moneys to said judge, and take his receipt therefor. R. S. 1894, 
§ 3897. 

532. Bailiff— Bond— Duties.— 127. The bailiff of such police 
court shall have the powers of a constable, and shall be a police officer 
of such city, designated and assigned to such court by the superin- 
tendent of police of such city. He shall give bond, payable to such 
city, in the penal sum of one thousand dollars ($1,000), with suf- 
ficient freehold surety, to be approved by the mayor, conditioned upon 
the faithful and honest discharge of his duties, which bond shall be 
filed in the office of the comptroller. It shall be his duty to be pres- 
ent at the sessions of such court, maintain order therein, and perform 
all other ordinary court duties, subject to the order of the court. He 
shall have and exercise the powers and duties of a constable, as now 
prescribed by law, except as herein otherwise provided. He shall 
take charge of all executions issued by the police court, and shall see 
to the collection of the same. He shall keep, in books to be furnished 
him by the comptroller, a full and accurate account and docket of all 
executions which may come into his hands, showing the names of the 
defendants, date and number of execution, amount of fines, fees or 
penalties imposed, and the disposition of such execution. He shall 
make out and deliver a written report to the clerk of the police court, 
every Tuesday of each week, of all moneys, collected by him during 
the week, giving the names of the defendants, number of executions, 
amount of fines, fees or penalties collected, and forthwith pay such 
moneys to such clerk, taking his receipt therefor. R. S. 1894, § 3898. 

533. Salary of bailiff, — 128. The salary of the bailiff of the police 
court shall be fixed by the police board of such city in any sum not 
exceeding $800 per annum, payable as other salaries of other police 
officers are paid. R. S. 1894, § 3899. 

534. Prosecuting attorney — Duties — Fees. — 129. The prosecuting 
attorney of the judicial circuit in which such city is located shall 
prosecute all cases in said court for violations of the laws of this state 
and shall be entitled to receive the same fees therefor as is now pro- 
vided in case of such prosecutions before the justices of the peace, and 
the city attorney shall prosecute all cases of violations of the ordi- 
nances of such city, and he shall be entitled to receive the same fees 
therefor as are allowed such circuit prosecutor. R. S. 1894, § 3900. 

535. Witness fees. — 130. Witness fees in all cases in such police 
court shall be taxed and collectible only when claimed or demanded 
by the witness at the time of the trial. And no witness shall be al- 
lowed more than one fee for any one day's attendance, nor shall any 
witness fee be taxed in any case in favor of any member of the police 
force of such city. All witness fees when collected and received by 
the police judge shall be paid by him to such witness upon his de- 
mand and his receipting upon the proper docket for such fee. R. S. 
1894, § 3901. 

536. Process — Issue — Service. — 131. All warrants or other proc- 



§ 537 CITIES OF MORE THAN OXE HUNDRED THOUSAND. 460 

ess issued by the police court shall be directed to the superintendent 
of police or any member of the police force of such city, which shall 
l>e executed, served and returned. R. S. 1894, § 3902. 

537. — Duties of police force, — 132. It shall be the duty of the 
members of the police force of such city to cause all persons arrested 
by them for a violation of any ordinance of such city, or any law of 
the state, to be taken before such police court for trial or examination, 
as the case may be. R. S. 1894, § 3903. 

538. Old officers to continue to act. — 133. From the taking effect 
of this act until Thursday at noon after the first election, the mayor 
of such city shall act as police judge and perform all the duties thereof, 
as required by this act. In case of the mayor's inability to be present 
and hold said court, he may in writing appoint any reputable attorney 
of said city judge jjto tern, to hold the same, who, before entering upon 
the discharge of such dut}^, shall take an oath to faithfully serve as 
such judge j)ro fern. Such judge j)ro fe?/?. shall receive a salary at a 
rate of six dollars and fifty cents ($6.50) per day, to be paid as the 
salary of officers is paid, upon the certificate of the mayor that the 
services have been rendered. The mayor may revoke such appoint- 
ment at any time. R. S. 1894, § 3904. 

ARTICLE 5.— CEMETERIES. 

SEC. SEC. 

539. Locating streets or highways through 540. Locating railways through ceraeteries. 
cemeteries. 

[Acts 1895, p. 16. In force Februar.- 18, 1895.] 

539. Locating streets or liighways tlirougli cemeteries. — 1. That 
nothing in any of the statutes of this state contained, shall be con- 
strued to authorize the board of commissioners of the county, or the 
municipal authorities of any city, in any county in this state having 
a city of more than one hundred thousand inhabitants within its 
boundaries, to locate any street, alley or other highway, through the 
lands owned by any cemetery, dedicated or purchased with a view to 
their being dedicated to burial purposes: Provided, That this act shall 
•not apply to the grounds of any cemetery which has been abandoned, 
or in which burials are no longer permitted. Burns' Supp. 1897, 
§ 47085 

540. Locating railways through cemeteries. — 2. That nothing in 
the statutes of this state contained shall be construed to authorize any 
corporation organized for the purpose of constructing any railroad, or 
street railroad, or any electric railway, or any person or persons to 
locate and construct the line of any such road through the lands of 
any cemetery dedicated or purchased with a view to their being dedi- 
cated to burial purposes, situated in any county in this state having 
within its boundaries a city containing a population of more than one 
hundred thousand inhabitants. Burns' Supp. 1897, § 4708c. 



CHAPTER 3. 

CITIES OF MORE THAN FIFTY THOUSAND. 

ART. ART. 

1. Incorporation and officers. 4. Police court, 

2. Legislative — Common council. 5. Department of water-works. 

3. Executive officers and depart- 6. School trustees — Taxation — Wharf- 

ments. master. 

ARTICLE l.-INCORPOEATION AND OFFICERS. 

sec. sec. 

541. Cities governed by this act. 546. Oaths and bonds. 

642. Elective officers — Election. 547. Officers not to have interest in con- 

543. Powers of officers under old charters. tracts. 

544. Vacancies — Filling of. 548. Officers not to purchase claims. 

545. Notice to persons elected. 

[Acts 1893, p. 65. In force March 3, 1893.] 

54:1. Cities governed by this act, — 1. That all cities of this state 
which had a population of more than fifty thousand and less than one 
hundred thousand inhabitants, as shown by the last preceding United 
States census, shall hereafter be governed by the provisions of this 
act. Any city falling within the scope of this act shall be, and con- 
tinue to be, the same legal corporation as heretofore, subject to the 
same liabilities heretofore incurred, and possessing the same rights 
which have heretofore accrued. All by-laws, ordinances and regula- 
tions, not inconsistent with this act, shall remain and continue in full 
force until altered or repealed by the common council in conformity 
with the provisions of this act, but all by-laws, ordinances and regu- 
lations inconsistent with this act are herebv abolished. R. S. 1894, 
§ 3905. 

See note, § 382, ante. 

Charter — Rules of construction — The charter or statute by which a municipal cor- 
poration is created or governed is its organic law^, and the rules applicable to the inter- 
pretation of constitutions may be used in the construction thereof. Newcomb v. City 
of IndianapoHs, 141 Ind, 451. 

Rules of construction.— See ante, § 45, general notes. 

Incorporation and org-anization.— For decisions relating to incorporation and organ- 
ization under the general law of 1867, see ante, § 46, notes. 

Org-anization of municipal corporation— Validity of tested by quo warranto.— See 
ante, § 46, notes. 

Incorporation— Presumption as to— Prescription— Judicial notice of .—See ante, 
§ 46, notes. 

(461) 



§ 542 CITIES OF MORE THAN FIFTY THOUSAND. 462 

Amendments — Repeal, etc. — The charter of a municipal corporation may be amended 
or repealed at the pleasure of the legislature. Special charters may be amended by 
either general or special act. See ante, § 46, notes and cases. 

Municipal powers— Sovereign— Leg-islative— Judicial—Not liable for exercise or 
non-exercise of. — See ante, § 46, note&. 

Municipal corporation defined.— See ante, § 46, notes. 

Special charter li)47. — The charter granted to the city of Evansville by the act of 
1847 was continued in force as an entirety, with the reserved power of amendment and 
repeal by clause 4 of the schedule to the constitution. Warren v. City of Evansville, 
106 Ind.'^104. 

For construction of said charter and amendments thereto in regard to taxes, street 
improvements, etc., see Warren v. City of Evansville, 106 Ind. 104; Chamberlain v. 
City of Evansville, 77 Ind. 542; City of Evansville v. Summers, 108 Ind. 189. 

Ordinances— Continued in force. — The ordinances enacted by the city of Evansville 
under its prior charter, which were in force upon the taking effect of this act, and which 
are not inconsistent with this act, are continued in force by this section. Belling v. 
City of Evansville, 144 Ind. 644. 

54:2. Eiectiye officers — Election. — 2. The elective officers of such 
city shall be a mayor and councilmen as hereinafter provided. There 
shall be held a city election in such city on the first Monday of April 
of every alternate year, commencing with the year 1893, and next 
thereafter in the year 1895, and so on continuously for the choice of 
such mayor and councilmen. Such election shall be held in con- 
formity to and in accordance with the general election laws of this 
state, and with the laws for the making out of certificates and mem- 
oranda of the result, the delivery of the list of voters and the tally 
papers, the assemblage of inspectors or judges of elections as a board 
of canvasserSj and the duties of such board in reference to state 
elections: Provided, That such board in city elections shall assemble 
in the room of the council of such city on the day following such elec- 
tion at 10 o'clock A. M. The duties of the county clerk in reference 
to such state elections shall be performed by the clerk of such city. 
All special elections in such city shall be governed by the same pro- 
visions. The laws of this state in reference to contests after state 
elections and all other matters shall be applicable to such city elec- 
tions as far as they are adapted to the same. R. S. 1894, § 3906. 

City officers— Legislature can not appoint.— See ante, § 59, note. 

Nature of office— Salaries— Allowances, etc.— See ante, § 59, note. 

Officers— Duties— Liabilities.— See ante, § 59, note. 

Election of officers— Yalidity of— Quo warranto.— See ante, § 59, note. 

Officers— Jurisdiction of— Injunction— Mandamus.— See ante, § 59, note. 

Eemoval of officers.— See ante, § 59, note. 

Mayor— Under g^eneral law.— See ante, § 80, note. 

Councilman.— And other officers, under general law, see §§ 59-68. 

Municipal elections.— See ante, § 61, ef seq., notes. 

A municipal corporation is bound by the declarations of its officers, where such decla- 
rations accompany, and are explanatory of, an act done by the officer in the scope of 
his authority. Los Angeles, etc., Co. v. City of Los Angeles, 88 Fed. Eep. 720; 1 Dil- 
lon Munic. Corp., 4th ed., § 237, n. p. 321. 



463 INCOEPORATION AND OFFICERS. § 543 

54:3. Powers of officers under old charters. — 3. On the taking 
effect of this act, the present common council, mayor, city clerk and 
all other city officers and employes, shall possess the powers conferred 
by this act and no other. All officers of such city created by the statutes 
of the state or ordinances of the city in conflict with the provisions of 
this act are hereby abolished, but all officers elected by the common 
council, and now serving as such, and all officers now serving who 
have been elected by the people, shall continue until the expiration 
of their respective terms for which they were elected, and at salaries 
.now fixed for such officers respectively, except the mayor shall receive 
the salary provided for in this act from and after April 3, 1893: Pro- 
vided, however, They shall not be removed from office except by impeach- 
ment, as provided herein: And provided, further. That upon the taking 
effect of this act the mayor shall assign such officers to appropriate de- 
partments, and they shall perform such duties and render such serv- 
ices as may be required of them by the respective departments. In 
case such city, prior to the passage of this act, shall have commenced, 
by its proper officers, any proceedings or undertakings of a public 
nature which was lawfully commenced or undertaken, the same shall 
not be interrupted by the passage of this act, but it shall be taken up 
and carried forward by the proper officer or department as prescribed 
by this act, except that in case of public improvements of any sort, 
whether of sew^ers, streets, alleys, levees, public buildings, or any 
other matter of an executive nature, in which a contract has not at the 
time of the passage of this act been actually let and entered into, the 
executive department having charge of such matter shall not be bound, 
unless it so elects by the previous proceedings, but may review the 
whole subject and modify, change or rescind all orders previously 
made in that behalf. The present officers of such city shall surrender 
the custody of all property, records, documents of every nature what- 
soever, to the appropriate office or department entitled to the pos- 
session of the same under this act. R. S. 1894, § 3907. 

See notes to ante, § 59, et seq. 

544. Yacancies — Filling of. — 4. In the event of a vacancy occur- 
ring in any elective office of such city from death, resignation or other 
cause, except councilmen at large, it shall be the official duty of the 
acting mayor to take notice thereof, and within ten days from the 
time when such vacancy begins to exist, to issue his proclamation for 
a special election to be held on a day therein named, not more than 
forty days nor earlier than twenty-five days from the date of such 
proclamation, in the city or ward, as the case mav be, to fill the vacant 
office for the unexpired term. R. S. 1894, § 3908. 

545. Notice to persons elected, — 5. The city clerk shall forthwith, 
after the execution of the certificate of election by the board of in- 
spectors of election of said office, as hereinbefore provided for, notify 
every person selected of the time wdien he must qualify, either by per- 
sonal service or leaving a copy at his usual place of residence, and shall 



§ 546 CITIES OF MORE THAN FIFTY THOUSAND. 464 

make return of such service and file the same in his office. R. S. 
1894, § 3909. 

546. Oaths and bonds. — 6. Every elective officer of such city shall, 
before entering upon the duties of his office, take and subscribe an 
oath, to be indorsed on the back of his certificate of election, and every 
appointive officer shall likewise take such oath, to be indorsed upon 
the back of his certificate of appointment, before some officer author- 
ized to administer the same, to support the constitution of the United 
States and the constitution of the state of Indiana, and to faithfully 
and honestly discharge all his official duties, such oath to be filed 
with the city clerk. Each of said officers, except the mayor and mem- 
bers of the common council, shall likewise execute a bond with surety, 
to be approved by the mayor, payable to such city in such penal sum 
as said council may enact by ordinances covering such cases, condi- 
tioned for the faithful performance of the duties of his office, and the 
payment of moneys received by him as such officer to the proper 
person, such bond to be filed with the head of the department of 
finance. Any person who shall not file his oath, or oath and bond as 
the case may be, with the proper officer, within ten days after the be- 
ginning of the term for which he is elected or appointed, shall be 
deemed to have refused to serve, and shall forfeit to the city the sum 
of ten dollars ($10), recoverable in a civil action, and the office shall 
be deemed to be vacant: Provided, That in case of such default a 
member-elect of the council may, within thirty days from the date of his 
election, present his excuse therefor in writing to the body to which 
he is elected, and any other officer may, within the same time, present 
his excuse in writing to the council, and if such excuse is accepted, 
may be relieved from such penalty, and on taking such oath and giv- 
ing such bond may assume the duties of his office. R. S. 1894, 
§ 3910. 

See notes, ante, § 113. 

547. Officers not to have interest in contracts. — 7. No mem- 
ber of the council, nor any other officer, clerk or deputy, or employe 
of such city shall, either directly or indirectly, be a party to, or in 
any manner interested in any contract or agreement, either with such 
city, for any matter, cause or thing, or by which any liability or in- 
debtedness is in any way or manner created or passed upon, authorized 
or approved by said council, or either of them, or by any officer, board, 
clerk, deputy or employe of such city. Any contract in contravention 
of the foregoing provisions shall be absolutely void. Whoever shall 
knowingly violate the provisions of this section shall be fined not 
more than one thousand dollars ($1,000), to which may be added im- 
prisonment for any period not exceeding one year. R. S. 1894, § 3911. 

548. Officers not to purchase claims, — 8. No councilman, or other 
officer, clerk, deputy or employe of such city shall purchase, either 
directly or indirectly, any bond, order, claim or demand whatever 
against such city, during his continuance in office or employment for 



465 LEGISLATIVE — COMMON COUNCIL. § 549 

any less sum than the amount specified therein; and any bond, order, 
claim or demand so purchased by any such person, in contravention 
of the foregoing provision, shall be forfeited to such city, and no ac- 
tian shall ever be maintained thereon. Gifts and the acquirement of 
equitable interests shall be deemed to be within the meaning and scope 
of the provisions of this section. R. S. 1894, § 3912. 
See ante, § 122, post, § 1420 and notes. 

ARTICLE 2.— LEGISLATIVE— COMMON COUNCIL. 

Executive and administrative func- 
tions. 

Investigating departments by coun- 
cil. 

Impeaching and removal of officers. 

Taxation. 

Borrowing money. 

Bonds — Interest — Sale. 

Temporary loans. 

Refunding bonds. 

Warrants — When not drawn. 

Interest on bonds. 

Appropriations, tax levy, when con- 
tinuous. 

Boundaries — Conclusive evidence — 
Annexation. 

Remonstrance against annexation — 
Proceedings. 

Part of city or town not to be annexed 
—Debts. 

Disannexing territory. 



LEGISLATIVE. 

A. ORGANIZATION. 

549. Legislative authority, — 9. The legislative authority of the 
city shall be vested in a common council. R. S. 1894, § 3913. 

For decisions and interpretation of statutes relating to the powers of the common 
council under the general law of 1867, see notes to ante, §§ 114-211. 

550. Wards. — 10. Such city shall be divided by the common 
council, by ordinance, into seven wards, of as nearly equal popula- 
tion, and of as compact and contiguous territory as practicable. It is 
made the duty of the present council of such city to readjust the ward, 
or common council boundaries in such city, and every sixth (6th) 
year after the year 1893 a new readjustment shall be made, but no 
oftener, unless the same is made necessary by the annexation of new 

CiT. AND To.— 30 



SEC. 




SEC. 


549. 


Legislative authority. 


566. 


550. 


Wards. 




551. 


Councilmen— Election. 


567. 


552. 


Qualifications of councilmen — Va- 






cancy. 


568. 


553. 


Expulsion of members— Rules. 


569. 


554. 


Meetings of council — Quorum — Pas- 


570. 




sage of ordinances. 


571. 


555. 


President of council— City clerk- 


672. 




Election. 


573. 


556. 


Meetings public. 


574. 


557. 


Duties of clerk. 


575. 


558. 


Ordinances — Passage— Eules— Sign- 
ing. 


576. 


559. 


Passage of ordinances. 


577. 


560. 


Publication of ordinances. 




561. 


Approval of ordinances — Veto — Pas- 
sage. 


578. 


562. 


Recording of ordinances. 


579. 


563. 


General powers of council. 




564. 


Penalty for violation of ordinances. 


580. 


565. 


Imprisonment. 





§ 551 CITIES OF MORE THAN FIFTY THOUSAND. 466 

territory, in which case the same may be done at any time by an ordi- 
nance passed by a two-thirds vote of the council. R. S. 1894, § 3914. 
Creation of wards— Judicial notice of existing* wards.— See ante, § 53. 

551, Councilmen — Election. — 11. Each ward shall elect one 
councilman at the city election hereinbefore provided for, and the 
whole city shall elect four councilmen at large, whose terms of office 
shall commence at 12 o'clock, noon, on the Monday following such 
election, and shall continue until the same hour of the same day, 
week and month of the second year thereafter: Provided, That at the 
first general election after the taking effect of this act there shall be 
elected councilmen only four from the city at large, who shall serve 
for a term of two years, and one from each ward who shall serve for a 
term of one year, commencing at the expiration of the terms of their 
respective present predecessors as herein provided. R. S. 1894, § 3915. 

552. QuaMcations of councilmen — Yacancy. — 12. No person shall 
hold the office of councilman from any ward, unless he is at the 
time of his election a resident and voter thereof; a removal of res- 
idence from such w^ard shall vacate his office. No person shall hold 
the office of councilman at large unless he is a resident and voter 
of such city. In the event of a vacancy in the office of councilman at 
large, from death, resignation or other cause, the common council 
shall within thirty ( 30 ) days from the time when such vacancy begins 
to exist, fill the vacant office for the unexpired term. The election 
therefor shall be held at a special meeting of the common council on 
the call of the mayor. Ten (10) days' notice of such meeting shall 
be given by the city clerk to the members of said common council, 
and also by one publication in a daily newspaper of general circula- 
tion published in such city, five days prior to such meeting. The 
person receiving a majority of the votes cast at such meeting shall be 
declared elected such councilman at large. R. S. 1894, § 3916. 

553. Expulsion of members — Rules. — 13. The common council 
shall have the powder to expel any of its members for violation of 
official duty and to declare the seat of any member vacant, by reason 
of his disability to perform the duties of his office. The council may 
adopt its own rules to govern such cases, but a two-thirds vote shall be 
required to expel a member or vacate his seat under this section. R. S. 
1894, § 3917. 

See note, cmte, § 119. 

554, Meetings of council — Quorum — Passage of ordinances. — 14. 

The members-elect of the council shall hold their first regular meet- 
ing on the first Monday after the day of their election at 7:30 p. m., 
in the council chamber. The council shall thereafter meet not less 
than once a month, and as much oftener as their rules may require. 
Special meetings may be held on the call of the mayor, or on such 
other call as may be provided for by the rules. Seven (7) members shall 
constitute a quorum. It shall require a majority vote of all the mem- 



467 LEGISLATIVE COMMON COUNCIL. § 555 

bers elect to pass an ordinance. Wherever it is provided in tliis act 
that an ordinance shall be passed by a two-thirds vote the same shall 
be construed to mean two-thirds of all the members elect. [As 
amended, Acts 1895, p. 258. In force, March 11, 1895.] Burns' 
Supp. 1897, § 3918. 
See note, ante, § 114. 

555. President of couucil — City clerk — Election, — 15. The coun- 
cil shall at its first meeting provided for in the last section choose 
from its number a presiding officer, and also a presiding officer ipro 
tern., who shall serve until noon of the second Monday in April in the 
succeeding year. The council shall elect the city clerk, who shall 
hold his office until removed by the council and until his successor is 
elected and qualified. The council shall by election fill all vacancies 
occurring in said office. R. S. 1894, § 3919. 

556. 3Ieetiugs public. — 16. All meetings of the council shall be 
public. R. S. 1894, § 3920. 

557. Duties of clerk. — 17. The city clerk shall be the clerk of the 
common council. It shall be his duty to keep the files and papers 
thereof, to make and keep an accurate minute and journal of the pro- 
ceedings, enter the ayes and noes on the passage of every ordinance 
and resolution, and on all other votes whenever requested to do so by 
two members. The city clerk shall also perform such other duties as are 
hereafter conferred upon him by this act. [As amended, Acts 1895, 
p. 258. In force, March 11, 1895.] Burns' Supp. 1897, § 3921. 

See post, § 587. 

Duties of clerk iiucler g'eneral law of 1867.— See ante, § 86 and notes. 

558. Ordinances— Passage— Rules—Siguing,-— 18. All ordinances, 
orders, resolutions and motions for the government or regulation of such 
city, and all ordinances for the appropriation of money shall originate 
in the common council. No appropriation shall be made for the pay- 
ment of money otherwise than by ordinance, specifying by items the 
amount thereof and the department for which such appropriation 
shall be made. The council may prescribe its rules. No ordinance, 
order or resolution shall become law or operative, until it has been 
passed, enrolled and attested by the clerk, and signed by the presid- 
ing officer thereof, and approved in writing by the mayor, or passed 
over his veto, as provided hereafter, and whenever the same may be 
necessary promulgated according to law. [As amended, Acts 1895, 
p. 258. In force, March 11, 1895.] Burns' Supp. 1897, § 3922. 

See notes, ante, §§ 82, 84, 117, 117a, 118, 124. 

559. Passage of ordinances. — 19. No ordinance shall be passed 
on the same day, or the same meeting, that it is introduced except by 
unanimous consent. R. S. 1894, § 3923. 

560. Publication of ordinances. — 20. Every ordinance impos- 
ing a penalty or forfeiture for the violation thereof, shall, before 



§ 561 CITIES OF MORE THAN FIFTY THOUSAND. 468 

the same shall take effect, be published once each week for two weeks 
consecutively in some newspaper printed in the city: Provided, That 
in the case of insurrection, riot, pestilence, conflagration or other public 
necessity requiring immediate operation of such ordinance, it shall 
take effect as soon as the proclamation is made thereof by the mayor, and 
posted in five public places in each of the wards of such city: Pro- 
vided, further. The common council shall have discretionary power to 
direct the publication of any ordinance in a daily newspaper, and the 
publication thereof for one day each in any two consecutive weeks in 
any daily paper shall be deemed sufficient to allow the same to take 
effect: Provided, That when no paper is published in s-uch city, 
printed or written copies of such ordinances shall be posted up by the 
city clerk in at least five public places in each ward of such city for 
two weeks before the taking effect thereof: Provided, further, That 
whenever any city shall publish any of its ordinances in book or 
pamphlet form, such publication shall be of itself sufficient publica- 
tion, and such ordinance or ordinances shall take effect two weeks 
from the date of publication appearing upon the said book or pam- 
phlet. Any such publication in book or pamphlet form, if the same 
shall purport to be printed under the authority of the common coun- 
cil of such city, shall be presumptive evidence in all courts and 
places, of the ordinances therein contained and of the date of adop- 
tion, and that the same are properly signed, attested and recorded, 
and approved by the mayor. R. S. 1894, § 3924. 
See notes, ante, §§ 117, 117a, 118, 124. 

561. Approval of ordinances — Yeto — Passage.— 21. Every ordi- 
nance, order or resolution of the common council shall, immediately 
upon its enrollment, attestation and signature by the clerk and presid- 
ing officer thereof, be presented by the city clerk to the mayor, and a 
record of the time of such presentment kept by the clerk. If the mayor 
approves it he shall sign it, and it shall become a law. If he does not ap- 
prove it he shall return it to the clerk, with his objections in writing, 
within ten days after receiving it, and the clerk shall present the same to 
the common council at its next meeting. It shall be the mayor's official 
duty to express, in writing, his approval or disapproval, as hereinbe- 
fore provided. If for any reason the mayor fails to discharge his duty 
within the time named, by approving or disapproving the same, in 
writing, the same shall be deemed equivalent to a disapproval, and in 
all cases of disapproval by the mayor the same shall not become a law 
unless the body in which the measure originated, within thirty days 
after the time named for the mayor's action, again pass the same by 
a two-thirds vote. R. S. 1894, § 3925. 

562. Hecording of ordinances. — 22. All ordinances shall, within 
a reasonable time after their approval by the mayor, or their pas- 
sage over his veto, be recorded in a book kept for that pur- 
pose by the city clerk. Such record shall include the signature of the 
presiding officer, attestation of clerk, and the mayor's written approval 



469 LEGISLATIVE— COMMON COUNCIL. § 563 

or disapproval, and memorandum of its passage over his veto. Such 
record or certified copy thereof shall be presumptive evidence of the 
going into effect of such ordinance. On the passage of any ordinance 
or resolution by the council, the yeas and nays shall be taken and en- 
tered in full on the journal. R. S. 1894, § 3926. 
See notes, ante, §§ 117, 117a, 118, 124. 

B. POWERS AND DUTIES. 

563, General powers of council.— 23. The common council shall 
have power to enact ordinances for the following purposes: To pro- 
vide a corporate seal, with appropriate device, for such city, to be af- 
fixed to all instruments or writings needing authentication. To fix 
the salaries or compensation of the various officers and employes of 
such city, except where a different provision is made in this act, upon 
this subject: Provided, That no member of the common council shall 
be allow^ed more than two hundred dollars for each year of his service 
as such member, nor shall any salary be changed after the election or 
appointment of a person to office, until his term expires or his office is 
vacated. To protect all city property, real and personal. To provide 
for the punishment of contempt and disorder in the rooms of the 
council and of the police court. To authorize a census of the city. 
To receive gifts, donations, bequests and public trusts, and to agree to 
conditions and terms accompanying the same, and bind the corpora- 
tion to carry them out. To declare what shall constitute a nuisance, 
to prevent the same, require its abatement, authorize the removal of 
the same by the proper officers, and provide for the punishment of 
the person or persons causing the same, continuing or suffering the 
same to exist, and to assess the expenses of its removal against such 
person or persons, and to provide for collecting such expenses either 
by placing the same on tax duplicate or by suit. To regulate or pro- 
hibit the use of hand-organs or other instruments of any annoying 
character, or other music of itinerant performers in the streets, alleys 
or public places of such city. To authorize the cleaning and purifi- 
cation of water, and water-courses, and rivers by the board of public 
works, to prevent encroachment of injury to the banks thereof or the 
casting into the same of offal, dead animals, logs, rubbish, dirt or 
any impure liquids of any kind whatever. For the purpose of this 
paragraph, jurisdiction is hereb}^ conferred upon said city for ten miles 
from the -corporate limits thereof. To prohibit or regulate the location 
and management of starch factories, glue factories, renderies, tallow 
candleries, breweries, soap factories, tanneries, distilleries, livery 
stables, foundries, bone factories, slaughter-houses, and of all other 
establishments of which the business or trade may become noxious or 
injurious to the public property, comfort or health; to prohibit the 
erection of such buildings or the continuance of such noxious or in- 
jurious occupations therein whenever the public comfort or health re- 
quires it. For the purposes of this paragraph, such city is hereby 



§ 563 CITIES OF MORE THAN FIFTY THOUSANI>. 470 

given jurisdiction for four miles from the corporate limits thereof. To 
prevent or regulate the use of fire-arms, fire-works, bon-fires, or other 
things or practices tending to endanger persons or property. To reg- 
ulate or prohibit the running at large of cattle, horses, swine, fowls, 
sheep, goats, dogs or other animals; to authorize the impounding, 
keeping, sale and redemption of such animals, when found in viola- 
tion of the ordinances in such cases provided. To prevent the deposit 
of any unwholesome substance, either on private or public property; 
compel its removal to designated points, and to require slops, gar- 
bage, ashes and other waste or unwholesome material to be removed 
to designated points or to require the occupants of premises to place 
them conveniently for removal. For the purposes of this paragraph, 
jurisdiction is given such city four miles from the corporate limits. 
To compel the occupants of any premises, buildings or out-houses 
situated in said city, or within four miles of the corporate limits 
thereof, when the same has become filthy or unwholesome, to abate or 
cleanse the same, and to authorize the same to be done by the proper 
public officers, and to assess the expense thereof against such property. 
To regulate or prevent the storage of gunpowder, tar, pitch, resin, 
coal oil, benzine, turpentine, hemp, cotton, nitro-glycerine, dynamite, 
giant powder, petroleum, gasoline or gas, or any product thereof, or 
any other explosive or combustible material, or any material which 
may seem dangerous. To establish, maintain and regulate the loca- 
tion and management of cemeteries or burial places within or with- 
out said city, and to provide for the sanctity of the dead; to regulate 
or prohibit the interment of bodies; to authorize the removal of bodies 
now or hereafter buried, or of cemeteries to some other proper place. 
For these purposes such city shall have jurisdiction for four miles 
from the city limits. To establish quarantine regulations. To authorize 
the removal or confinement of persons having infectious or pestilential 
diseases. For the purposes of this paragraph and the preceding para- 
graph, jurisdiction is given such city for four miles from its corporate 
limits. To regulate or prohibit the ringing of bells, crying of goods 
or sounding of steam whistles. To direct the location and regulate 
the management of all public markets and market places, whether es- 
tablished by the city or by private individuals; to prevent the offenses 
of regrating and forestalling. To regulate and require reports and 
records of births and deaths, and to make such requirements as may 
be deemed necessary to prevent the spread of contagious or infectious 
diseases. To authorize and require the inspection and condemnation, 
if unwholesome, and to regulate the sale of meats, vegetables, poultry, 
fish, butter, oleomargarine, cheese, lard and all other food or pro- 
visions. To regulate the selling, weighing, measuring of hay, wood, 
coal, coke and all other articles sold by weight or measure, and to re- 
quire dealers to keep honest weights and measures, and to provide for 
their inspection and sealing. To authorize and require the inspection 
and licensing of steam boilers and elevators, and to prohibit their use 
when unsafe or dangerous, or without license. To define fire limits 



471 LEGISLATIVE COMMON COUNCIL. § 563 

in such city, and the character of buildings which are forbidden to be 
erected within such limits, and to prohibit the erection of buildings in 
such city without a license first obtained therefor, and to regulate the 
construction of buildings to prevent the spread of fire. To authorize 
and require the inspection of buildings and structures erected, or to 
be erected, or in process of erection. To authorize the license there- 
for to be revoked, and the condemnation thereof in whole or in part, 
when dangerous or insecure in the opinion of the department of pub- 
lic works, and to authorize the same to be taken down within a speci- 
fied time by the owner thereof, or in default thereof to authorize the 
same to be taken down at the owner's expense; or in case of an 
emergency, to authorize the same to be taken down by the department 
of public works, without delay for the owner to do so. To com- 
pel persons about to undertake dangerous improvements to execute a 
bond of sufficient sureties, conditioned that the owner or contractor 
will pay all damages which may be sustained by any person or prop- 
erty from such work. To make all regulations which may be deemed 
expedient for the promotion of health or suppression of disease. To 
regulate the construction of chimneys, smoke-stacks, hearths, ovens; 
the erection of stoves and stove-pipes, boilers and apparatus used in 
buildings or other places, and to cause the same to be removed or made 
secure when the same is considered dangerous; to compel owners and 
occupants of houses and buildings to make scuttles in the roof thereof, 
with stairs or ladders leading to the same, and to compel the erection of 
fire escapes. To authorize and require the inspection of gas pipes, 
water pipes, plumbing, drainage, sewerage and electric wires on private 
property or elsewhere; to compel them to be repaired o/ made secure 
by the owner or occupant, and on failure of such owner or occupant 
to authorize or require the gas or electric current to be shut off from 
the same until such repairs are made. To regulate and prohibit the 
keeping of any lumber yard, and the placing or piling of any lum- 
ber, wood or other combustible material, within the fire limits. To 
establish and maintain a wharf or wharves, control and regulate the 
same, to fix the rates of wharfage and enforce the collection of the 
same, to regulate the landing of boats and water craft and the loading 
or unloading thereof, and to prohibit or regulate the dumping of ma- 
terial upon the bank or in any river, or the obstruction thereof. 
To prevent immoderate or careless driving or riding. To regulate 
the use of streets and alleys by vehicles, and designate the kind of 
conveyances and vehicles which may not use designated streets, which 
may have been improved, together with hours for the use of such streets 
hy certain specified classes of vehicles. To prevent the incumbering of 
streets, alleys, squares, sidewalks and crossings with vehicles, horses 
or any other substance or material interfering with the free use of the 
same. To regulate the speed of horses, wheeled vehicles, cars and 
locomotives. To regulate and protect all bridges, culverts, tunnels, 
viaducts, aqueducts, sewers, canals and hydrants wholly or partly in 
said city, and to prohibit digging in such streets, alleys or public 



§ 563 CITIES OF MORE THAN FIFTY THOUSAND. 472 

places, or in any way injuring, disturbing or making holes in the sur- 
face thereof. To regulate the use of sidewalks and all structures, 
under or over the same, and to require the owner or occupant of prem- 
ises to keep the sidewalk in front of the same free from snow and 
other obstructions, and prescribe hours for cleaning the same. To 
regulate and prevent the throwing or depositing of sweepings, dust, 
ashes, offal, dirt, garbage, paper, hand-bills, dirty liquids or any other 
material into any street, alley or public place. To regulate and pre- 
vent the use of streets, sidewalks and public places for signs, sign 
posts, awnings, awning posts, holes, horse troughs, steps, railings, 
entrances, racks, posting hand-bills and advertisements and display 
of goods, wares and merchandise. To regulate and prohibit the ex- 
hibition and carrying of banners, placards, advertisements or hand- 
bills in the streets, alleys or public places. To regulate and prevent 
the flying of flags, banners or signs across the streets or from houses. 
To regulate the numbering of houses and lots and compel the owners 
to renumber the same, or in default thereof to authorize and Require 
the same to be done by the department of public works at the owner's 
expense, such expense to constitute a lien upon the property, and en- 
forceable as provided in the ordinance. To regulate or change the 
names of streets and parks. To regulate the making of private con- 
nection with sewer, gas and water pipes, and to compel owners of prop- 
erty to bring such connections inside of the curb of streets before per- 
manent improvement thereof, and in default of the owner making 
such connections, to authorize the city to do so at the owner's ex- 
pense, and to make such expense a lien on the property and collecti- 
ble in the same manner that expenses for sprinkling streets are collecti- 
ble. To license, tax and regulate all coaches, hacks, carriages, drays 
and other vehicles of every kind kept and used within said city: Pro- 
vided, That the revenue derived therefrom shall be applied only to the 
maintenance and repair of streets and alleys. To regulate, license, tax, 
restrain theatrical and all other exhibitions, shows or entertainments 
for which money is demanded or received within said city and for a 
distance of two miles outside of the corporate limits thereof: Provided, 
That lectures on scientific, historic, benevolent, artistic, religious or 
literary subjects and apparatus for the elucidation of the same, and 
specimens of fine art, shall not be deemed to be within this provision. 
To license, tax regulate or prohibit runners at railroad stations, or 
other places for stages, cars, public houses or other things or persons. 
To regulate the sale of all kinds of property at auction in the streets, 
stores, shops or elsewhere in the city, and to tax and license auction- 
eers. To license, tax, regulate and prohibit the supply, distribution 
and consumption of artificial and natural gas, of water and of elec- 
tricity, and to fix the prices thereon. To license, tax, regulate, sup- 
press and prohibit hawkers and itinerant dealers, peddlers and pawn- 
brokers, and to revoke such license at pleasure. To license, tax and 
regulate public hackmen, draymen, omnibus drivers, carters, cabmen, 
porters, expressmen, bill-posters and all other persons pursuing like 



473 LEGISLATIVE COMMON COUNCIL. § 563 

occupations and prescribe their compensation. To license, tax and 
regulate or prohibit all inns, taverns, hotels, restaurants, or other places 
used or kept for public entertainment. To license, tax and regulate 
the selling or giving away of any spirituous, vinous or malt liquors 
and to tax, license and regulate places where such liquors, or either 
of them, are manufactured or stored, or where such liquors, or either 
of them, are to be used on the premises when given away, sold, stored, 
or manufactured; but such licenses shall not exceed the amount pro- 
vided by the laws of this state for other cities thereof. For the pur- 
pose of this section, jurisdiction is given such city for four miles from 
its corporate limits. To tax, license and regulate distilleries and brew- 
eries, and the depots or agencies established in said city of all brew- 
eries and distilleries. To regulate and license lumber yards, livery 
stables and public scales. To tax, license and regulate second-hand 
and junk stores, and to forbid their purchasing or receiving any article 
whatever from minors without the consent of their parents or guard- 
ians. To license and license [tax] all stores which do business on 
the installment plan. To license, tax, regulate and prohibit the keep- 
ing or harboring of dogs. To license, tax, regulate and prohibit dairies 
and the keeping of milch cows. To license, tax and regulate branch 
stores or establishments, and all other concerns established in said 
city for temporary business only; and to license, tax and regulate 
itinerary physicians and venders of medicine. To license, tax and 
regulate the sale of cigarettes. 

To preserve peace and good order, prevent vices and immorality, 
quiet riots and dispel disorderly assemblages. To suppress gaming 
and gaming-houses and places of ill-fame or assignation, or houses 
kept for any immoral purpose; to prohibit and destroy any instru- 
ments and devices of gaming, and to restrain fraudulent practices. 
To license, tax, regulate, restrain or prohibit all tables, alleys, 
machines, devices or places of any kind for sports or games. To reg- 
ulate the time and place of bathing in the rivers or public waters of 
such city; to direct the location and management of public bath- 
houses, to license the same or to require the same to be closed, if 
deemed expedient. To restrain and punish vagrants, mendicants, 
street beggars, common prostitutes, and their associates, thieves and 
criminals, or persons known and reputed to be such. For the purposes 
of the last five paragraphs, such city is given jurisdiction for four 
miles from the limits thereof. To prohibit cruelty to animals. 

To keep open rivers, streams or water ways, prevent the waters 
thereof from pollution; jurisdiction for these purposes being given 
such city for ten miles from its corporate limits. To provide for 
change in the course of streams, rivers or water-ways, passing through 
or bordering upon the corporate limits thereof, and to authorize and 
exercise the right of the power of eminent domain, either within or with- 
out such city, for the purpose of securing a new course for such stream, 
river or water-way. To provide on what terms real estate in such 



§ 563 CITIES OF MOEE THAN FIFTY THOUSAND. 474 

city may be drained by meaDS of surface or under drains, over or 
across other real estate therein or within four miles thereof. 

To secure the safety of citizens and others in the running of trains 
in or through such city; to require persons or corporations owning or 
operating railroads to fence their respective railroads, to construct 
cattle-guards, street crossings and viaducts and public roads, and to 
keep the same in repair and safe condition for persons on foot, in ve- 
hicles or otherwise; to keep flagmen at railroad crossings, and pro- 
vide protection against injury to persons or property from the opera- 
tion of said railroads; to authorize and require railroad companies to 
change the location, grade and crossings of their respective railroads; 
to compel them to raise or lower their railroad tracks to conform to 
any grade which may be established by such ordinance; to compel 
persons or companies owning or operating railroads to construct 
bridges, viaducts or tunnels, and approaches thereto, across their re- 
spective railroads or rights of way at street or alley crossings; to com- 
pel railroad companies to make and keep open and in repair ditches, 
drains, sewers and culverts along and under their respective tracks; 
to require railroad corporations or persons owning and operating rail- 
roads to keep gutters and street crossings clean along their rights of 
way; to prohibit the laying of any railroad track across any street 
or alley or public place without permission first obtained therefor 
from the department of public works, and to provide for the taking up 
and removing any track so laid without notice, and charge the ex- 
pense thereof against the offending person or corporation; to require 
any person or company owning or operating any railroad to take up 
and change the location of any railroad track or switch- heretofore or 
hereafter laid within the limits of the said city; to require railroads now 
occupying or that shall hereafter occupy any of the streets, alleys or 
other public places of the city to improve so much of such streets, 
alleys or other public places as is occupied by such tracks, and to the 
end of the cross ties on either side thereof, and where there are two or 
more tracks to require such railroads to improve also the space be- 
tween said tracks and to cause such improvement to be made and 
assess the cost thereof against said railroad companies. 

To regulate and protect, as otherwise herein provided, fire engines, 
hose, hook and ladders, and all other property and apparatus belong- 
ing to or used by the police or fire departments, and to prevent 
interference with the members of the police or fire departments while 
on duty. To authorize the closing of any street, alley or public place, 
or part thereof, whenever the public safety may require. To authorize 
the alienation and conveyance of any property, real or personal, be- 
longing to such city: Provided, That no such property shall be sold 
until the same has been appraised by three disinterested freeholders 
of such city, appointed by the judge of the circuit court, in the county 
where such city is located, neither of said appraisers to be officers or 
employes of such city, and their sworn valuation in writing returned 
to the mayor. No sale or conveyance shall be made for a less sum 



475 LEGISLATIVE COMMON COUNCIL. § 563 

than said appraisement, and in case of real estate, only by a two- 
thirds vote of the common council: Provided, That where it is shown 
to the common council that any personal property does not exceed in 
value the sum of one hundred dollars the council may authorize the 
sale thereof without an appraisement, but no such sale shall be effect- 
ual until approved by the council. To establish, maintain and regu- 
late pounds, market houses, market places, houses of refuge, pest 
houses, hospitals, dispensaries, engine houses and all other public 
city institutions. To appropriate by ordinance and pay a sum not 
exceeding one hundred dollars a month to any home for friendless 
women established and maintained in such city; or within the county 
in which such city is situate, and also to appropriate in like manner 
and pay to any other charitable institution established and maintained 
in such city or county such sum as, in the judgment of the common 
council, shall be necessary to enable such institution to provide for 
the sick and disabled of such city. 

To regulate the building of party walls and partition fences, pre- 
scribe in what proportion adjoining owners shall bear the expense of 
the same, in what manner such expense shall be levied and collected, 
and to define the terms upon which partition walls already established 
may be used by adjoining owners. To carry out the objects of the 
corporation not hereinbefore particularly specified: Provided, That 
such ordinances are not inconsistent with the laws of the state. 

To acquire, secure, purchase, maintain and regulate a public park 
or parks within the corporate limits of the city, or within four miles 
of such limits; and for such purpose power is given to condemn prop- 
erty as other property is condemned for public purposes; and to make 
such levy or appropriation and do such other acts as may be necessary 
to acquire, purchase, or secure such park or parks and maintain the 
same. For the purposes of this section jurisdiction is given such city 
for four miles from its corporate limits. 

When jurisdiction is given by this act to such city beyond it[s] corpo- 
rate limits, the same shall not extend to any point within the corporate 
limits of any other municipal corporation, except in matters relating 
to public health and pollution of water-courses. [As amended, Acts 
1895, p. 258. In force March 11, 1895.] Burns' Supp. 1897, § 3927. 

Powers of common council.— See ante, §§ 124, 404, notes. 

Municipal powers -Mode of exercise— Municipal contracts— Municipal property, 
etc. — See ante, § 124, notes. 

Leg-islative and ministerial powers— Police power.— See ante, § 124, note. 

Actions— Statute of limitations, etc.— See ante, § 124, notes. 

Ordinances— Enactment, amendment, repeal, validity, invalidity and construc- 
tion of, etc.— See ajite, §§ 117, 117a, 118, 124, notes. 

Resolutions and rules of council.— See ante, §§ 116, 117, 117a, 118, 124. notes. 

Special subjects— Powers of council to legislate concerning-.- For special snbjeots 
under the general law over which council has power to legislate, and the decisions of 
the courts relating thereto, see ante, § 124, notes. 

Slaug-hter-houses — Ordinances. — An ordinance prohibiting the maintenance of any 
slaughter-house within the city when authorized by statute can not be defeated by the 



§ 564 CITIES OF MORE THAN FIFTY THOUSAND. 476 

courts on the ground that it is unreasonable. Beiling v. Citj' of Evansville, 144 Ind. 
644. 

The necessity or expediency of prohibiting slaugliter-houses in a city is imphed from 
an ordinance making that prohibition, without any provision for investigation into the 
character or condition of the slaughter-houses. Beiling v. City of Evansville, 144 Ind. 
644. 

Ordinances continued in force, — The ordinances enacted by the city of Evansville 
under its prior charter, which were in force upon the taking effect of this act, and which 
are not inconsistent with this act, are continued in force by this statute. Beiling v. 
City of Evansville, 144 Ind. 644. 

Nuisance. — Where a common council is empowered to declare what shall constitute 
a nuisance, and to require its abatement and to assess the expenses of its removal 
against the person causing the same or suffering it to exist, the council can not declare 
that to be a nuisance which in fact is not. City of Evansville v. Miller, 146 Ind. 613 ; 
Bank v. Sarlls, 129 Ind. 201 ; Baumgartner v. Hasty, 100 Ind. 575. 

Nuisance— Power of council to declare.— An ordinance which provides, "that any 
building, shed, out-house or structure of any kind that shall be partially destroyed by 
fire, or from any other cause, and shall be suffered by the owner thereof to remain in 
such condition after being notified by the department of public works to remove, repair 
or rebuild the same, shall constitute a nuisance," is as to such provisions void. City of 
Evansville v. Miller, 146 Ind. 613. 

Yiaducts—Bridg'es— Grade crossing's, etc.— The legislature may delegate to munici- 
pal corporations the power to require railroads to construct viaducts, bridges, tunnels, 
etc., and to change grades, etc. Chicago, etc., R. Co. v. Nebraska, 170 U. S. 57; New 
York, etc., E. Co. v. Bristol, 151 U. S. 556 ; Wabash E. Co. v. Defiance, 167 U. S. 88; 
State V. Mssouri Pacific E. Co , 33 Kan. 176. 

C. MISCELLANEOUS. 

564, Penalty for yiolation of ordinances. — 24. In every ordinance 
which the common council shall pass, there may be imposed a pen- 
alty for the violation or non-performance thereof. This penalty may 
be either a forfeiture of money, or a fine or imprisonment, or both of 
the last two: Provided, That no penalty or fine shall exceed five hun- 
dred ($500) dollars, and no imprisonment shall exceed six months 
for one offense. R. S. 1894, § 3928. 

See notes, ante, §§ 118, 211, post, §§ 1237, 1383. 

565, Imprisonment. — 25. The city council shall have power to 
provide by ordinance for the imprisonment of any person against whom 
a penalty, fine or cost for violation of any penal ordinance shall have 
been adjudged, until such fine, penalty or costs are fully paid or re- 
plevied; also, to compel the enforcement of manual labor by such de- 
fendant, and by persons sentenced to imprisonment, by the use of 
sufficient force and means. R. S. 1894, § 3929. 

Penalty — Not a debt. — A penalty is not a debt in the sense of the constitution. See 
ante, § 12, note. 

566, Executive and administratiye functions. — 26. Whenever any 
executive or administrative function shall be required to be performed 
by any ordinance or resolution of such common council, the same 



477 LEGISLATIVE COMMON COUNCIL. § 567 

shall be performed by the proper executive department and not by 
said council. No new department shall be created. Said ordinances 
shall designate the department which is to perform the duties there- 
under; but if such designation is not made, either by statute, ordinance 
or resolution, the mayor shall assign such duties to the proper depart- 
ments. The council shall not elect or appoint any person to any office 
or emplovment whatever except that of the city clerk. [As amended, 
Acts 1895, p. 258. In force March 11, 1895.] Burns' Supp. 1897, 
§ 3930. 
See note, ante, § 407. 

D. INVESTIGATION AND IMPEACHMENT. 

567. Investigating departments by council, — 27. The common 

council shall have power to supervise and investigate all departments, 
officers and employes of the government of such city, and to examine 
into any charges preferred against the same, and into the affairs of any 
corporation, department or board in which the city may be interested, 
or with which it may have entered into a contract, or may be about so 
to do. It shall have power and access to all records thereto pertaining, 
and power to compel the attendance of witnesses, and the production 
of books, papers and other evidence, at any meeting of the body, or 
any committee thereof, and for that purpose may issue subpenas and 
attachments in any case of inquiry, investigation or impeachment, 
and cause the same to be served and executed in any part of the county 
where such city is located. If any witness shall refuse to testify as to 
any fact within his knowledge, or to produce any books or papers 
within his possession, or under his control, required to be used as 
evidence in any such case, the clerk of the body by whose authority 
such witness was subpenaed, if so directed by the body or com- 
mittee holding the investigation, shall forthwith report the facts re- 
lating to such refusal to the circuit or superior courts in such county, 
or the judge thereof, and all questions arising upon such refusal, and 
also upon any new evidence not included in such first report ( which 
new evidence may be offered either in behalf or against such wit- 
ness), shall at once be heard by such court or judge. If the court or 
judge determine that the testimony or evidence required by such wit- 
ness is competent and revelant [relevant] , and material, and ought to be 
given or produced by the witness, the court or judge shall make an order 
requiring the vv^itness to testify, or to produce books and papers, or 
both. In case of a refusal to comply with such order, the court or 
judge shall have power to commit the witness or otherwise punish 
him for contempt, as provided for in the laws governing contempt of 
court in this state. No witness shall be excused from testifying in 
any criminal proceeding, or in any investigation or inquiry before the 
council, or any committee thereof, or any officer of the city having the 
right to conduct the investigation, touching his knowledge of any 
offense committed against the provisions of this act, or of any or- 
dinance passed in pursuance thereof, or continued in force by this act. 



§ 568 CITIES OF MORE THAN FIFTY THOUSAND. 478 

But such testimony shall not be used against him in any criminal 
prosecution whatever. R. S. 1894, § 3931. 
See notes, ante, § 119. 

568. Impeaching and remoYal of officers. — 28. Whenever any writ- 
ten charges shall have been adopted by the council or any committee 
thereof, against any officer, employe or department of the corporation, 
except members of the council, the same shall be heard by the coun- 
cil, under such regulations as may be prescribed by ordinance. It 
shall require a two-thirds vote to impeach or remove an officer or em- 
ploye. R. S. 1894, § 3932. 

E. FINANCIAL. 

569. Taxation. — 29. The common council shall have the power 
to order and direct the levy of an annual tax not exceeding the rate of 
one dollar and thirty-five cents ($1.35) upon every one hundred dol- 
lars ($100) of valuation for any one year, as shown by the tax dupli- 
cate for the current year: Provided, however, That the common coun- 
cil may, in their discretion, for the purpose of paying existing obliga- 
tions, increase the levy for the years 1893 and 1894 to the sum of one 
dollar and fifty cents on every one hundred dollars of valuation, and to 
manage the finances of the city, subject, however, to the powers and 
duties herein prescribed in respect to the several executive departments 
created by this act. The assessment of property and collection of 
taxes shall be made as now provided by law: Provided, That all 
real estate, within the limits of the city, not exempt from taxation 
by the laws of this state, shall be assessed at its fair cash value, with- 
out discrimination in the valuation of lands used for agricultural pur- 
poses within the limits of such city. R. S. 1894, § 3933. 

See Taxation, R. S. 1894, chap. 108 (§ 8408 et seq.), and Burns' Supp. 1897, chap. 108 
(§8411, etseq.), and Acts 1899, pp. 422, 430, 497, 516; see notes, ante, §212, et seq. 

570. Borrowing money. — 30. The common council shall have power 
to borrow money to an amount not exceeding two per cent. ( 2 per cent. ) 
of the taxable property of such city, as the same may appear on the tax 
duplicate of such city for the year in which such loan shall be effected: 
Provided, That the entire money borrowed shall not at any time exceed 
two per cent. (2 per cent. ) of the taxable property of such city. Such 
loans may be made only for the purpose of procuring money to be 
used in the legitimate exercise of the corporate power of such city, 
and for the payment of legitimate corporate* debts. R. S. 1894, § 3934. 

See constitutional Hmitation, ante, § 39, and notes, and notes, a?iie,§§143, 411. 

Constitutional and statutory limitations disting-uished.— The rule which applies to 
a constitutional hmitation is not usually applicable when the limitation is only statutory. 
When the limitations are imposed by the constitution it may not be within the power 
of the legislature to dispense with them by the creation of a ministerial commission 
A\diose findings shall be taken in lieu of the facts ; but, when the hmitations are imposed 
by the statute only, the legislature being the source of the Hmitation, may create a board 



479 LEGISLATIVE COMxMON COUNCIL. § 571 

authorized to determine the questions of fact upon which the limitation depends, and 
its findings mil be conclusive in favor of bona fide purchasers of bonds. Chilton v. 
Town of Gratton, 82 Fed. Rep. 873; Sherman Co. v. Simons, 109 U. S. 735; Lake Co. v. 
Graham, 130 U. S. 674. 

When the Umit of issue under the statute is to be ascertained from records or data 
which are pecuKarly within the knowledge and control of the officers of the municipal- 
ity, then the bonds will be valid in the hands of a bona fide holder. Chilton v. Town 
of Gratton, 82 Fed. Rep. 873. 

571, Bonds — Interest — Sale, — 31. Such ordinance for loans may 
authorize the issue of bonds or other city obligations, negotiable or not, 
bearing interest at a rate not to exceed six per cent., and running not 
to exceed thirty years. Such ordinances shall provide for the time 
and manner of advertising the sale of such bonds or other securities, 
and of the receipt of bids for the same, together with the mode and 
terms of sale. All duties with regard to the preparation, advertise- 
ment, negotiation and sale of such bonds or other securities shall be 
performed by the head of the department of finance. Said officer, 
after causing such bonds to be properly executed, shall deliver the 
same to the city treasurer, taking his receipt therefor, and upon the 
conclusion of the contract for the sale of such bonds or other securi- 
ties shall certify to the treasurer the amount which the purchaser is 
to pay for the same, together with the name of the purchaser. And 
thereupon it shall be the duty of the treasurer to receive from the pur- 
chaser the amount so certified by the head of the department of 
finance, and to deliver the bonds or other securities to the purchaser 
taking his receipt therefor. The treasurer and the head of the depart- 
ment of finance shall thereupon each make a report of his proceedings 
to the mayor. [As amended, Acts 1895, p. 258. In force March 11, 
1895.] Burns' Supp. 1897, § 3935. 

572, Temporary loans, — 32. Temporary loans may be authorized 
by ordinance of the common council in anticipation of the revenue of 
the city for the current and following year, and payable within that 
year, but the aggregate amount of such temporary loan in any fiscal 
year shall not exceed the amount of the city tax levy for the same 
year. No temporary or other loan upon the revenue of any current 
or succeeding year shall be made until all temporary loans upon the 
revenue of any preceding year shall have been fully paid. R. S. 1894, 
§ 3936. 

573, Refunding bonds. — 33. The common council shall have 
power to authorize the issue and sale of refunding bonds, in order to 
■raise money to take up any outstanding bonds of such city, or to ex- 
change with the holders of such outstanding bonds. The same shall 
be governed by the provisions of the second preceding section, so far 
as the same are applicable. R. S. 1894, § 3937. 

Eefunding' bonds.— See notes, ante, §§ 39, 143, 144, 157, 414, andposf, §§ 1001. 1003, 
1005. 

574:. Warrants — When not drawn. — 34. No order or warrant 
shall be drawn against the funds of such city, in the hands of the 



§ 575 CITIES OF MORE THAN FIFTY THOUSAND. 480 

treasurer, or other officer, unless an appropriation has been made 
by ordinance of money for such purpose which is not exhausted, 
or unless the same shall be for a salary fixed by statute or ordinance, 
or for payment of any judgment, which such city is compelled to pay. 
R. S. 1894, § 3938. 

575. Interest on bonds, — 35. All bonds or other securities offered 
for sale, pursuant to the provisions of this act, may bear annual in- 
terest not exceeding six per cent. (6 per cent.), may run not longer 
than thirty years, and may contain an option allowing such city to 
redeem the same at earlier specified dates, in whole or in part, if so 
directed by the ordinance authorizing such issue. R. S.1894, § 3939. 

576. Appropriations, tax levy, when continuous, — 36. If the com- 
mon council for any year shall fail to pass ordinances fixing the annual 
tax levy and appropriating money for the various executive departments 
by or before the first day of October in any year, then and in that case 
the appropriation made for such department or departments for the 
preceding year shall be deemed to be continued and renewed for the 
current year, and the tax levy for the preceding year continued. R. S. 
1894, § 3940. 

577. Boundaries — Conclusive evidence — Annexation. — 37. The 
common council shall have power, by ordinance, to declare and define 
the entire corporate boundaries of such city, and such ordinance, prop- 
erly certified, shall be conclusive evidence, in any court or proceeding, of 
the boundaries of such city, except as provided in the next section. 
Such ordinance defining the entire city boundary may include contig- 
uous territory, whether platted or not, not previously annexed (and 
such annexation shall be binding, unless such newly annexed terri- 
tory shall be within the limits of another town or city, in which case 
there may be an appeal, as hereinafter provided). Said common 
council may also, by separate ordinance, not purporting to define the 
entire boundaries of such city, annex contiguous territory, whether 
platted or not, to such city, and a certified copy of such ordinance 
shall be conclusive evidence in any proceeding that the territory there- 
in described was properly annexed and constitutes a part of such city, 
except as provided in the next section. Immediately after the pas- 
sage of every such ordinance as is provided for in this section, the 
same shall be published for at least two consecutive weeks in a daily 
newspaper of general circulation published in such city. R. S. 1894, 
§ 3941. 

See chapter 1, article 6, Annexation of Territory, ante §§ 253-255 and notes, and chap- 
ter 6, article 2, Annexation — Boundaries, post, §§1017-1048 and notes, and ante, §418 
and notes. 

578. Remonstrance against annexation — Proceedings. — 38. When- 
ever such territory is annexed to such city as provided in the fore- 
going section, whether by general ordinance defining the city bound- 
aries, or by special ordinance for the purpose of annexing territory, 
and such territory so sought to be annexed is unplatted ground, or 



481 LEGISLATIVE COMMON COUNCIL. § 578 

lies within the corporate limits of any other town or city, an appeal 
may be taken from such annexation, by one or more owners of real 
estate, in the territory sought to be annexed, filing their remonstrance 
in writing against such annexation, together with a copy of such or- 
dinance in the circuit or superior courts of the county where such ter- 
ritory is situate, within ten days after the last publication provided 
for in the preceding section, such written remonstrance or complaint 
shall state the reason why such annexation ought not in justice to 
take place. Notice of such proceedings by way of summons shall 
be served upon the proper officer of the city seeking to make an- 
nexation, and such city shall become defendant in such cause, and shall 
be required to appear and make answer as in other cases. The court 
shall thereupon proceed to hear and determine such appeal without 
the intervention of a jury, and shall give judgment upon the question 
of such annexation according to the evidence which either party may 
introduce relevant to the issue. If the court shall be satisfied upon 
the hearing that less than 75 per cent, of the resident freeholders of 
the territory sought to be annexed have remonstrated, and that the 
adding of such territory to the city will be for its interest, and will cause 
no manifest injury to the persons owning real estate in the terri- 
tory sought to be annexed, he shall so find, and said annexation 
shall take place. If the court shall be satisfied that 75 per cent, or 
more of the resident freeholders in the territory sought to be an- 
nexed have remonstrated, then such annexation shall not take place, 
unless the court shall find from the evidence that the prosperity of 
such city and territory will be materially retarded and the safety of 
the inhabitants and property thereof endangered without such annex- 
ation. In case the court shall so find the annexation shall take place, 
notwithstanding the remonstrance. Such decision shall be final, and 
no appeal sha.ll lie therefrom, nor shall the laws touching change of 
venue from the county apply. But changes of venue from the judge 
may be had as in other cases. Costs shall follow judgment. Pending- 
such appeal, and during the time within which such appeal may be 
taken, such territory sought to be annexed shall not be deemed a part 
of the annexing city. Upon the determination of such appeal, the 
judgment shall particularly describe the ordinance upon which the 
appeal is based, and it shall be the duty of the county clerk to forth- 
with deliver a certified copy of such judgment to the clerk of such 
city; who shall record the same in the ordinance record, and make a 
cross reference to the page thereof upon the margin where such 
original ordinance was recorded In case the decision is adverse to 
such annexation, no further annexation proceedings for such territory 
shall be lawful for two years after the rendition of such judgment. 
[As amended. Acts 1895, p. 258. In force March 11, 1895.] Burns' 
Supp. 1897, § 3942. 
See note, ante, § 419. 

CiT. AND To.— 31 



§ 579 



CITIES OF MORE THAN FIFTY THOUSAND. 



482 



579. Part of city or town not to be annexed — Debts, — 39. No 

such annexation shall be made, under the foregoing sections, of a part 
of the territory of any other incorporated town or city, but only of the 
whole corporate territory thereof. In case of such annexation, the 
two corporations shall be deemed to be consolidated, and the consoli- 
dated corporation shall be bound for all the debts and liabilities, and 
shall be the owner of all corporate property, franchises and rights of 
every nature, of both of such municipal corporations. R. S. 1894, 
§3943. 

580. Bisannexing territory. — 40. The common council shall have 
power by ordinance to disannex and throw out any territory forming 
a part of the corporate limits of such city, upon a petition of a majority 
of the freeholders resident therein, but such disannexation shall not 
relieve such territory from being taxed for the purpose of paying any 
city indebtedness, existing before such disannexation, nor the interest 
thereon, nor any new securities issued to refund such indebtedness, 
nor the interest thereon. R. S. 1894, § 3944. 



ARTICLE 3.— EXECUTIVE OFFICERS AND DEPARTMENTS. 



SEC. 

681. Executive and administrative pow- 
ers. 

582. Mayor— Election— Term— Qualifica- 

tions. 

583. Vacancy in office of mayor. 

584. Acting mayor, 

585. Duties of mayor. 

586. Salary of mayor. 

687. City clerk— Deputies— Duties — Sal- 

ary — Fees. 

688. Departments established. 

589. Qualifications of heads of depart- 

ments — Payment of moneys re- 
ceived. 

590. Estimates by departments. 

591. Limit of power to bind city. 

592. Exceeding authority— Penalty. 

593. Comptroller — Appointment — Salary 

—Bond. 

594. Duties of comptroller — Payment of 

salaries. 

595. Deputy comptroller — Appointment — 

Salary. 

596. City attorney — Appointment — Bond 

— Duties — Salary — Deputy , 

597. Board of public works — Appoint- 

ment — Salaries — Bonds. 

598. Clerk of board — Appointment — Sal- 

ary—City engineer— Appointment 
— Salary — Bond. 
699. Board of public works — Powers and 
duties. 



SEC. 

600. Streets — Repairs and cleaning— Cost 

— Contracts for work, 

601. Letting contracts for work — Notice. 

602. Expenses of board. 

603. Appropriation of property — Notice- 

Remonstrance. 

604. List of owners of property affected. 

605. Damages and benefits. 

606. Insane persons and infants. 

607. Remonstrance — Appeal. 

608. How appeal taken — Judgment final. 

609. Benefits— Liens — Assessment roll. 

610. Assessments, when due— Foreclos- 

ure. 

611. What damages city pays. 

612. Damages — Payment. 

613. Improvement of streets and 

walks — Order — Notice 
ments — Liens — Payment. 

614 . Expenses of improvements— Ho w as- 

sessed. 
615 Assessments — Liens. 

616. Payment by installments 

617. Certificate of engineer — Assessment 

roll — Notice — Remonstrance 

618. Final estimate — Copy of assessment 

roll to treasurer. 

619. Agreement by persons paying by in- 

stallments. 

620. Duty of treasurer 

621. Street improvement bonds. 

622. Failure to pay installment — All due. 



side- 



4S3 



EXECUTIVE OFFICERS AND DEPARTxMENTS. 



§581 



SEC. SEC. 

623. Cliange of levees and water-courses. 637. 

624. Act governs levee assessments. 638. 

625. Local sewers — Construction. 639. 

626. Cost of sewers — Assessment. 640. 

627. General sewers— Costs — Assess- 

ment. 641. 

628. Assessment roll — Notice — Remon- 642. 

strance. 643. 

629. Sprinkling streets — Notice for bids — 644. 

Remonstrance. 645. 

630. Cost of sprinkling— Contracts. 646. 
631- Payment for sprinkling — Time of 647. 

contract. 

632. Board of public safety — Appoint- 648. 

ment — Bonds— Salaries. 649. 

633. Rules for government of police — 

Quorum of board — Clerk. 650. 

634. Superintendent of police and other 

officers — Pay — Control of police — 651. 
Fire districts. 

635. Members of fire and police force. 652. 

636. Removal of firemen and policemen. 



Powers of policemen. 

Policemen to convey prisoners. 

Detail of police— Special policemen. 

Powers of commissioners and super- 
intendents. 

Duty of police force— Powers. 

Gaming houses. 

Duty on making arrest. 

Not to interfere in politics. 

Bonds of appointees. 

Insurance fund. 

City treasurer — Appointment — Sal- 
ary — Oath — Bond. 

Account of moneys — Reports. 

Salary and fees for treasurer — Dep- 
uty. 

Receiving unlawful compensation — 
Penalty. 

Board of health and charities — Ap- 
pointment — Salary — Duties. 

To prepare ordinances. 



EXECUTIVE. 



581. Executiye and administratiye powers,— 41. The executive 

and administrative authority of such city shall be vested in a mayor, 
city clerk, the departments hereinafter created, or referred to, and such 
other officers as mav hereafter be appointed by virtue of this act. 
R. S. 1894, § 3945. 

For powers and duties of executive and administrative officers under the general law 
of 1867, see ante, § 59, et seq., and notes. 

582, Mayor — Election— Term— QualiUcations,-— 42. There shall 
be chosen at each general election, hereinbefore provided for, except 
the first, by the voters of said city, a mayor whose term of office 
shall commence at 12 o'clock, noon, on the Monday next after his 
election, and shall continue two years, or until his successor is 
elected and qualified, except as herein otherwise provided. No per- 
son shall be qualified for the office of mayor who has not been a cit- 
izen and resident of such city for three years previous to his election, 
and who is not at least twenty-five (25) years of age. R. S. 1894, 
§ 3946. 

-X 583. Vacancy in office of mayor. — 43. In case of a vacancy 
occurring in the office of mayor, from death, resignation or other- 
wise, more than six (6) months before a general election shall oc- 
cur, it shall be the duty of the acting mayor to take official notice 
thereof, and within ten (10) days thereafter issue his proclamation 
calling for a special election by the voters of such city, at a date 



§ 584 CITIES OF MORE THAN FIFTY THOUSAND. 484 

therein named, not later than forty (40) cla3^s, nor earlier than twen- 
ty-five (25) days after issuance of such proclamation, to fill such va- 
cancy or vacancies. Such special election shall be governed by the 
laws and regulations governing general elections. R. S. 1894, § 3947. 

584. Acting mayor. — 44. In case of a vacancy in the office of 
mayor from death, resignation or otherwise, or in case of disability on 
the part of the mayor to perform the duties of his office, the city comp- 
troller shall perform the duties of acting mayor and be entitled to his 
salary for the time being: Provided, That during the time of perform- 
ing such duties of acting mayor he shall not perform any duties as 
comptroller. R. S. 1894, § 3948. 

585. Duties of mayor. — 45. It shall be the duty of the mayor: 
To cause the ordinances of the city and the laws of the state to be exe- 
cuted and enforced. To communicate to the council at least once a 
year, a statement of the finances and general condition of city affairs, 
and also such information in relation to the same as he may be called 
upon to furnish from time to time. To make such recommendations 
in writing, by message to the council, as he may deem expedient. To 
call special meetings of the council, when the same shall be expedient. 
To perform such duties of an executive or administrative character as 
may be prescribed by law, and he shall be responsible for the good 
order and efficient government of the city. To fill, by appointment, 
vacancies in the office of the police judge. To appoint the heads of de- 
partments, as hereinafter created, who shall hold office until their suc- 
cessors are appointed and qualified: Provided, That the mayor may at 
any time suspend or remove from office any or all of such persons, 
whether appointed by him or his predecessors, by notifying them to 
that effect and sending a message to the council stating in writing 
his reasons for such removal. To sign all bonds, deeds and written 
contracts of the corporation, and all licenses issued pursuant to law 
by any department, and to revoke or suspend any such license. To 
approve or disapprove, in writing, within ten (10) days after receiv- 
ing the same, every ordinance or resolution of the council, and he 
shall transmit to the body in which the same originated within such 
time a message, announcing such approval or veto. In case of a 
veto, he shall state in writing his reasons therefor, and such resolu- 
tion or ordinance shall not become operative unless the same is passed 
over such veto, by a two-thirds vote of the common council: Pro- 
vided, That in ordinances appropriating money or levying a tax or 
taxes, the mayor may approve or disapprove of the separate items of 
such appropriation or levy. In case of disapproval of any item or 
items, and approval of the remainder of the ordinance, so much of 
the same as is approved shall be law and operative and those 
items which are disapproved shall not become law, and operative un- 
less passed over his veto by a two-thirds vote as above provided. 
To call together the heads of departments, for consultation and advice 
upon the affairs of the city at least once a month, and to call on the 
heads of all departments for reports from the same, which it shall be 



485 EXECUTIVE OFFICERS AND DEPARTMENTS. § 586 

their duty to prepare and submit in writing. Records shall be kept 
of such meetings above provided for, and rules and regulations shall 
be adopted thereat for the administration of the affairs of the city de- 
partments, not inconsistent with any law or ordinance, which regula- 
tions shall prescribe a common and systematic method of ascertain- 
ing the comparative fitness of applicants for office, position and pro- 
motion, and of selecting, appointing and promoting those found to be 
best fitted, excepting the department of public safety, without regard 
to political opinions or services. To appoint, as often as he thinks 
proper, three competent persons to examine, without notice, the ac- 
counts of any department, officer or employe, and the money, securi- 
ties and property of the city in their possession or charge, and report 
the result of such investigation. R. S. 1894, § 3949. 

See notes, ante, § 426. 

For powers and duties of mayor under the general law of 1867, see a7ite, § 80 and 
notes. 

586. Salary of mayor. — -46. The mayor of such city shall be paid 
the annual salary of four thousand dollars. R. S. 1894, § 3950. 

587. City clerk — Deputies — Duties — Salary — Fees. — 47. The clerk 
of such city shall be the clerk of the common council, and may 
appoint one or more deputies, at his own expense to assist him. 
He shall keep the records of the proceedings of said body. 
Said city clerk shall have charge of all the papers relating to 
the business of said common council, and shall prepare and 
keep an ordinance book, as elsewhere provided in this act, shall 
have charge of all documents and books, the keeping of w^iich may be 
intrusted to him by statute or ordinance, shall keep the city seal, and 
shall perform all other duties prescribed by law or incident to his 
office. He shall receive a salary of fifteen hundred dollars ($1,500) 
per year for all such services, and shall not receive any other compen- 
sation, fee or perquisite, except for furnishing certified copies of the 
records in his. possession, which shall be received as evidence in any 
proceeding, and for which the clerk shall receive like fees as paid 
to the county clerk for similar services. Said city clerk shall also be 
the clerk of the police court and of the department of public safety. 
Said clerk shall deliver over to his successor, as soon as the same shall 
have qualified for oihce, all documents, books and belongings of 
his office. The city clerk may be authorized by the common coun- 
cil to employ a deputy at a salary not to exceed twelve hundred dol- 
lars ($1,200) per year: Provided, That it is shown to the satisfac- 
tion of the council that such deputy is necessarv. [As amended. 
Acts 1895, p. 258. In force March 11, 1895.] Burns' Supp. 1897, 
§ 3951. 

See aiite, §557. 

For duties of clerk under general law 1867, see wite, §§ 86, 87, and notes. 



588 CITIES OF MORE THAN FIFTY THOUSAND. 486 



DEPARTMENTS. 

588. Departments established. — 48. The following executive de- 
partments are hereby established in such city: 

a. Department of finance. 

5. Department of law. 

c. Department of public works. 

d. Department of public safety. 

e. Department of collection. 

f. Department of public health and charities. 

g. Department of water- works. 

No other executive or administrative departments shall be estab- 
lished in such city. Subordinate officers and employes not herein pro- 
vided for shall be appointed by the heads of their respective depart- 
ments. Each department shall have the power to prescribe rules and 
regulations not inconsistent with any statute or ordinance, or regula- 
tion established pursuant to section 45 of this act, for its own gov- 
ernment, regulating the conduct of its officers, clerks and employes, 
the distribution and performance of its business, and preservation of 
books, records, paper and property under its control. Each depart- 
ment shall promptly furnish to the mayor or the common council any 
information which may be called for in relation to its affairs. The 
heads of said departments shall be appointed by the mayor. Each of said 
departments shall have power to designate and appoint, and at pleasure 
remove a person in such department as deputy or first assistant. All 
official business of the several departments shall be transacted at the 
offices thereof, and a continuous record or minute shall be kept at 
said offices respectively of such business. The officer or officers at 
the head of any department may appoint and remove any of his or 
their clerks and assistants, subject to any regulations adopted pursuant 
to section 45 of this act, and, unless otherwise fixed by ordinance, 
may fix their salaries: Provided, That after the expiration of thirty 
(30) days from the time when a new officer or officers shall have been 
appointed to the head of a department, he or they may remove clerks 
or assistants only upon filing in writing with the city clerk the rea- 
sons for any such removal, except that foremen, inspectors and labor- 
ers temporarily employed under the department of public works may 
be removed at any time at the pleasure of that department. All officers 
shall give bond as required by ordinance, except when otherwise pro- 
vided herein. R. S. 1894, § 3952. 

See note, ante, § 429. 

589. Qualifications of heads of departments — Payment of moneys 
receiyed.— 49. No person shall be appointed as the head of any de- 
partment, or as a member of any board herein provided for, unless he 
shall have been a resident and elector of such city for three years im- 
mediately prior thereto. No person who is paid a salary for his serv- 
ices from the city treasury shall receive to or for his own use, directly 



4S7 EXECUTIVE OFFICERS AND DEPARTMENTS. § 590 

or indirectly, any fees, perquisites of office, commissions, percentages, 
or money paid' to him in his official capacity, unless specifically author- 
ized in this act; but all fees, perquisites, percentages, commissions, 
and moneys so paid and received by or for any such officer or person 
shall be the property of the city, and shall be paid by him into the 
city treasury; and all moneys received for licenses or permits shall be 
paid into the treasury weekly without deduction by the officer or de- 
partment receiving them, and every such officer or person who shall 
receive any fees, perquisites, percentages, or other moneys which be- 
long to the city, and should be so paid into its treasury, shall before 
he shall be entitled to receiA^e or be paid his salary, make, under oath, 
a detailed statement and return to the head of the department of 
finance in such form as he may prescribe, showing the aggregate 
amount of all moneys received by him since the last preceding 
statement and return, and shall produce a receipt showing the pay- 
ment of such sum to the treasurer. The comptroller may require 
such officer or person to make such statement and return to him, if it 
be not made as herein provided, and examine such officer or person 
under oath touching the matter herein provided for. R. S. 1894, 
§ 3953. 

590, Estimates by departments. — 50. It shall be the duty of each 
executive department, before the commencement of each fiscal year, 
to submit to the joint meeting of the heads of the departments and of 
the various boards hereinbefore provided for in section 45, an estimate 
of the amount of money required by their respective departments for 
the ensuing year, stating with as great particularity as possible each 
item thereof. The comptroller shall at the same time submit a state- 
ment or estimate of city expenditures for other purposes, for the en- 
suing year, over and above the moneys proposed to be used by the 
various executive departments, giving with as great particularity as 
possible each item thereof. After such meeting and reports and con- 
sultation, the city comptroller shall thereupon proceed to revise such 
estimates for the ensuing year, and the comptroller shall then prepare a 
report to the mayor of the various estimated amounts required in said 
comptroller's opinion for each executive department, and for other 
city expenses, together with an estimate of the necessary per cent, of 
taxes to be levied. The mayor shall at the next meeting of the com- 
mon council present such report with such recommendations as he may 
see fit. It shall be the duty of the committee on finance of said com- 
mon council thereupon to prepare an ordinance fixing the rate of taxation 
for the ensuing year, and also an ordinance making appropriations by 
items for the use of the various executive departments and other city 
purposes for the ensuing year. Said ordinance may reduce any es- 
timated item for any executive department, from the figure submitted 
in the report of the city comptroller, but shall not increase the same 
unless recommended by the mayor. Such appropriation ordinance 
shall thereafter be promptly acted upon by the common council. If 
at any time after the passage of such ordinance an emergency shall 



§ 591 CITIES OF MORE THAN FIFTY THOUSAND. 488 

arise for further appropriations for the use of any department, as cer- 
tified by such department as hereinbefore provided, or other purposes 
during the year, such additional appropriation may be made on the 
recommendation of the comptroller by a two-thirds vote of the coun- 
cil. R. S. 1894, § 3954. 

591, Limit of power to bind city. — 51. No executive department, 
officer or employe hereof shall have power to bind such city by any 
contract, agreement, or in any other way, to any extent beyond the 
amount of money at the time already appropriated by ordinance for 
the purpose of such department, and all contracts and agreements, 
expressed or implied, and all obligations of any and every sort beyond 
such existing appropriations, are declared to be absolutely void. 
Nothing herein contained shall be so construed as to prevent the 
proper department of the city, when authorized by ordinance, from 
making any contract for the lighting of such city and the inhabitants 
thereof for any period not exceeding five years; nor shall anything 
herein contained be so construed as to prevent any such department, 
officer or employe from issuing any bond authorized by this charter 
and provided for by ordinance. [As amended. Acts 1895, p. 258. 
In force March 11, 1895.] Burns' Supp. 1897, § 3955. 

See note to § 432, ante. 

592, Exceeding authority — Penalty. — 52. Any city official who 
shall issue any bond, certificate or warrant for the payment of money 
which shall purport to be an obligation of such city, and be beyond 
the unexpended balance of any appropriation made for such purpose, 
or who shall attempt to bind such city by any contract, agreement, or 
in any other way, to any extent beyond the amount of money at the 
time already appropriated by ordinance for such purpose, and re- 
maining at the time unexpended, shall be liable on his official bond 
to any person injured thereby, and shall be fined in any sum not 
more than one thousand dollars ($1,000), and imprisoned in the 
county jail not more than six months, either or both. This section 
shall not apply to any contract or bond authorized by law and pro- 
vided for by an ordinance of the common council. [As amended, 
Acts 1895, p. 258. In force March 11, 1895.] Burns' Supp. 1897, 
§ 3956. 

A. DEPARTMENT OF FINANCE. 

593. Comptroller— Appointment — Salary — Bond. — 53. The city 
comptroller shall be at the head of the department of finance, and shall 
have an appropriate seal. He shall be appointed by the mayor. His 
salary shall be two thousand dollars ($2,000), which may be increased 
by ordinance to a sum not exceeding three thousand dollars ($3,000) 
per year, and shall give boud in the sum of five thousand dollars 
($5,000). R. S. 1894, § 3957. 

594. Duties of comptroller — Payment of salaries. — 54. It shall be 
the duty of the comptroller to prescribe the form of reports and accounts 



4S9 EXECUTIVE OFFICERS AND DEPARTMENTS. § 594 

to be rendered to liis department, and to have inspection and revision 
of the accounts of the several departments and trusts, to audit the 
accounts of the several departments and trusts, and all other ac- 
counts in which the city is concerned, and submit annually to the 
council, at the end of each fiscal year, a report of the accounts of the 
cit}^, under oath, exhibiting the revenues, receipts and expenditures, 
the sources from which the funds and revenues are derived, which re- 
port shall be published in pamphlet form; to keep separate accounts 
for each specific item or appropriation made by the council to each de- 
partment, and require all warrants to state specifically against which 
of said items the warrant is drav/n. Each account shall be accom- 
panied by a statement in detail, in separate columns, of the several 
appropriations, the amount drawn on each appropriation, the unpaid 
contracts charged against it, and the balance standing to the credit of 
the same. He shall not suffer any appropriation to be overdrawn or 
the appropriation for one item of expense to be drawn upon for any 
other purpose, or by any department other than that for which the 
appropriation was specifically made, except on transfer authorized by 
ordinances. He shall sign and issue all orders for money upon the 
city treasurer, and no moneys shall be paid out by the treasurer ex- 
cept upon such order. In case of stated salaries, fixed by law or ordi- 
nances, said comptroller shall issue orders therefor, but in all other 
cases he shall require a warrant to be presented to him from the head 
of the department under whose supervision the obligation has been 
incurred, or if not so incurred, then such warrant shall be drawn by 
the mayor. In no case shall the comptroller draw an order on the 
treasury unless there be at the time money in the treasury properly 
applicable to the payment thereof. The expenditures of the comp- 
troller must be approved in writing by the mayor before any order 
is drawn therefor. To have charge of all books or papers pertaining 
to his department or entrusted to the same, and to turn the same over 
to his successor. If an}^ warrant presented to the comptroller contain 
an item for which no appropriation has been made, or there shall not 
be a sufficient balance of the proper fund for the payment thereof, or 
w^hich, for any other cause, should not be approved, he shall not ap- 
prove the same, and shall notify the proper department of the facts; 
and if the comptroller shall approve any warrant contrary to the 
provisions hereof, he shall be individually liable for the amount of 
the same to the holder thereof, and to the extent of his bond; his 
sureties shall also be liable. Whenever a warrant is presented to him 
he shall have power to require evidence that the amount claimed is 
justly due, and, for that purpose, may summon before him an}^ officer, 
agent or employe of any department of the city, or any other person, 
and examine him upon oath relative to such warrant or claim. Such 
persons so summoned shall be subject to the provisions of this act touch- 
ing the examination of persons by the council, said comptroller having 
the same power as such body. To perform the duties elsewhere defined 
by this act with regard to the negotiation and sale of city securities, 



§ 594 CITIES OF MORE THAN FIFTY THOUSAND. 490 

and to keep a register of all bonds of the city and the transfer thereof, 
and an account of all outstanding securities. To manage and direct 
the finances and accounts of the city, and to make investments of city 
funds subject to the ordinances of the common council. To issue all 
city licenses of every nature whatever upon the presentation and sur- 
render of the receipt of the treasurer, showing the payment of the li- 
cense fee, and to collect comptroller's fees as fixed by ordinance. Said 
comptroller shall, once each week, pay to the treasurer the amounts 
collected by his department for the preceding week, specifying the 
source from which they have been derived, and the comptroller shall 
relinquish, in writing, to such city all fees which have been or may 
be collected. To prescribe the form and methods of keeping and ren- 
dering all city accounts, the form of accounts and pay-rolls to be used 
in the several departments and offices, the manner in which all salaries 
shall be drawn, and the mode by which all creditors, officers and 
employes shall be paid. All salaries shall be payable monthly. To 
furnish the treasurer statements of all appropriations made by the 
council before any warrant shall be drawn on account of the same, and 
to notify the mayor in case of any neglect or failure on the part of any 
officer or officers authorized to collect any moneys for and on account 
of such city in the performance of such duty or in depositing their 
collections in the treasury; and thereupon the mayor shall suspend 
such officer or officers and proceed against them by an action upon 
their official bond, or otherwise, as he may deem best. To carefully 
examine tax duplicates in the hands of the county auditor and city 
treasurer and see that they are properly made out, so far as the same 
relate to city taxes, and to see that the assessment of property is prop- 
erly made out by the assessor so far as the same relates to city taxes, 
and to notify the treasurer of any omitted property which may come to 
his knowledge, and place the same upon the city tax duplicate. To ex- 
amine the accounts of the city treasurer and make an annual settlement 
with him, charging to such treasurer the amount of all taxes and other 
assessments, entered on said duplicate, in favor of such city, together 
with all penalties, interest and other sums in addition to the amount of 
such tax, which it may be the duty, according to law, of such treasurer 
to collect in behalf of the city, and to credit him with all disbursements 
made on account of the lawful orders drawn on him by such comp- 
troller. To draw orders on the treasury for miscellaneous city ex- 
penditures not made under the direction of any executive department, 
nor specifically fixed by law, as in the case of salaries: Provided, That 
no such order shall be drawn by such comptrollers unless the money 
properly applicable thereto has been appropriated by ordinance, and 
remains unexpended, and no liability shall accrue against such city, 
nor can any officer, agent or employe of such city bind the same, di- 
rectly or indirectly, for any such miscellaneous expense without the 
written approval of the comptroller previously obtained and filed in the 
comptroller's office, nor in any case beyond the appropriation already 
made and remaining unexpended and available for such purpose. All 



491 EXECUTIVE OFFICERS AND DEPARTMENTS. § 595 

obligations in contravention of the preceding provisions are declared to 
be void for all purposes. It shall be the duty of the comptroller to 
to make out the necessary tax duplicates, copying the same from the 
county duplicate and assessment, as provided for in the act of the gen- 
eral assembly concerning taxation, approved March 6, 1891, and de- 
liver the same to the city treasurer each year. The comptroller and 
his deputy are hereby empowered to administer oaths v/hen necessary 
in matters pertaining to his official business, for which no charges shall 
be made. [As amended, Acts 1895, p. 258. In force March 11, 1895.] 
Burns' Supp. 1897, § 3958. 

595. Deputy comptroller—Appointment — Salary. — 55. The com- 
mon council may by ordinance provide for the appointment of a dep- 
uty comptroller at a salary not exceeding the rate of one thousand dol- 
lars ($1,000) per year, the deputy to be appointed and removed at the 
pleasure of the comptroller, the comptroller to be responsible for the 
acts of his deputy. The comptroller and his deputy shall have power 
to administer oaths in connection with all matters relating to said of- 
fice, for which no charge shall be made. [As amended. Acts 1895, p. 
258. In force March 11, 1895.] Burns' Supp. 1897, § 3959. 

B. DEPARTMENT OF LAW. 

596, City attorney — Appointment — Bond — Duties — Salaries — Dep- 
uty.— 56. The head of the department of law shall be the attorney and 
counsel of such city. He shall be appointed by the mayor, shall hold 
office as hereinbefore provided, and give bond with surety in the sum of 
five thousand dollars ($5,000), to be approved by the comptroller. He 
shall have the management, charge and control of the law business of 
such city and for each branch of its government, and prosecute all 
violations of city ordinances, shall be the legal adviser of all its de- 
partments and officers, shall draw up ordinances, leases, deeds, con- 
tracts or other legal papers for such city and its various departments 
when requested so to do by the proper officer, shall be the custodian 
of the papers properly appertaining to his office, and shall turn the 
same over to his successor in office. He shall conduct all legal pro- 
ceedings authorized by this act, and all appeals of every nature vrhat- 
soever in which such city or the public shall have an interest, shall 
make all searches and abstracts of title required in opening, widening 
or changing any street, alley or public place, or required in any pub- 
lic work of any kind. He shall receive an annual salary of fifteen 
hundred dollars ($1,500.00) in full of his services. All fees, per- 
quisites or other emoluments received by him, or payable to him, ex- 
cept for prosecuting violators of city ordinances, shall be collected 
by him for and in behalf of said city, and the same paid into the city 
treasury one [once] a week, said payment to be made under oath as to 
the amount received. Such attorney shall use all diligence to collect 
costs due such city, and all other fees or recoveries falling within the 
purview of his official duties. He shall employ a deputy, and also 



§ 597 CITIES OF MORE THAN FIFTY THOUSAND. 492 

such other assistants as he may be authorized to do by ordinance, and 
no other, and shall promptly commence all proceedings necessary or 
advisable for the protection or enforcement of the rights of such 
citv or the public. He shall report to the mayor in writing all such 
matters as he may deem important, and to the department of finance 
all judgments for which the city shall be liable. No judgment against 
such city shall be enforceable except out of moneys appropriated for 
that purpose, but the common council and mayor may be compelled 
by mandamus proceedings to levy, collect and appropriate the neces- 
sary sum for the payment of any judgment, in which such leg- 
islative bodies may be sued collectively by their legal name, service 
of process being had on any member thereof, and all members shall 
be bound by such judgment. R. S. 1894, § 3960. 

Powers and duties of city attorney. — For appointment, removal, etc., under gen- 
eral law of 1867, see ante, §§59, 59a, 96 and notes. 

Authority of city attorney.— A city attorney who is charged by statute with the duty 
to prosecute and defend all suits for and against the city, in several controversies in- 
volving the same issues, may bind the city by an agreement that all the controversies 
shall abide the result of one test case. Bank of Commerce v. City of Louisville, 88 Fed. 
Eep. 398. 

C. DEPARTMENT OF PUBLIC WORKS. 

597. Board of public works — Appointment — Salaries — Bonds. — 57. 

The department of public works shall have for its head a board of 
three members, to be appointed by the mayor, not more than two of 
whom shall be of the same political party. The mayor shall have 
the power at any time to remove any member of said board and to fill, 
by appointment, any vacancy occurring in said office. The person 
appointed to fill a vacancy shall hold the office, subject to removal by 
the mayor, until his successor is appointed by the mayor. Each mem- 
ber of said board shall receive a salary of at the rate of fifteen hundred 
dollars ($1,500) per year, which may be increased by ordinance to a 
rate not exceeding two thousand dollars ($2,000), and give bonds with 
sureties in the sum of five thousand dollars ($5,000), to be approved 
by the comptroller. Said board shall choose a chairman from its own 
number. No member of said board shall have any authority to act 
on behalf of the same, except pursuant to an order of the board, regu- 
larly made at a meeting of the same, at which meeting a majority of 
said board shall have been present. All actions of the board shall be 
recorded by the clerk thereof, together with a record of the vote of each 
member, where the vote is not unanimous. The board shall make 
rules governing the time and place for holding regular and called 
meetings, and for giving notice thereof. R. S. 1894, § 3961. 
Rules.— See note, ante, § 438. 

598. Clerk of board — Appointment — Salary — Cit^^ engineer — Ap- 
pointment — Salary — Bond. — 58. Said board shall appoint a clerk 
at a salary of five hundred dollars ($500), which may be increased 



493 EXECUTIVE OFFICERS AND DEPARTMENTS. § 599 

by ordinance to not exceeding one thousand dollars ($1,000). The 
mayor shall also appoint a city civil engineer, and may remove him 
and fill all vacancies in said office. Said engineer shall be subject to 
the discretion of said board, and receive a salary of two thousand dol- 
lars ($2,000), and give bond in the sum of five thousand dollars 
($5,000). R. S. 189-i, § 3962. 

For powers and duties of city engineer under general law 1867, see ante, § 91 and 
notes; Hirth v. City of Indianapolis, 18 App. 673. 

599, Board of public works — Powers aucl duties. — 59. The board 
of public works shall have the power to condemn, hire or purchase any 
real estate or personal property needed by such city for any public 
purpose, except when a different provision for purchase is made by 
this act: Provided, That when a sum of money more than two thou- 
sand dollars ($2,000) is required to be paid for the condemnation, 
hire or purchase of any real estate or personal property, the same shall 
not take place unless the condemnation, hire or purchase is specific- 
ally authorized by ordinance. To have charge of all property, real 
and personal, belonging to such city, and to care for the same except 
where the custody of such property is by this act placed under differ- 
ent control. To design, order and contract for and execute the im- 
provement and repair of any property, real or personal, belonging to 
or used by such city, and the erection of all buildings for public 
purposes together with all fire cisterns, pounds and all other struct- 
ures of any nature, needed for any public purposes. To approve the 
platting of all streets and alleys in any addition to such city, or 
within the corporate limits thereof, or within one mile outside such 
corporate limits, to require the same to correspond in width, and to 
be co-terminus with adjoining streets and alleys. No plat of any ad- 
dition within said city or within one mile of the corporate limits 
thereof shall be entitled to record in the recorder's office in the county 
in which such city is located without such written approval indorsed 
thereon. To lay out, open, change, vacate, and fix or change the 
grade of any street, alley or public place within such city, and to de- 
sign, order, contract for and execute the improvement or repair of 
any street, alley, wharf, or public place within such city. To repair, 
clean, light and sprinkle any street, alley, wharf or public place within 
such city which requires the same, in the opinion of such board. Said 
work to be done either by contract or otherwise, and to cause lamp 
posts or other lighting apparatus to be erected in the streets, alleys or 
public places of said city. To lay out, design, order, contract for and 
execute the construction, alteration and maintenance of all public 
drains and sewers within such city, and all drains or sewers without 
such city and within four miles thereof, which may be necessary to 
carry off the drainage of such city. To purchase or erect by contract 
or otherwise, and operate gas works, electric light works, street cars 
and other lines for the conveyance of passengers and freight, natural 
gas lines, telegraph and telephone lines, steam and power-houses 



§ 599 CITIES OF MORE THAN FIFTY THOUSAND. 494 

and lines, for the purpose of supplying such city, and the suburbs 
thereof, or to purchase or hold a majority of the stock of corporations 
organized for either of the above purposes: 

Provided, That none of the powers conferred by this paragraph 
shall be exercised except pursuant to an ordinance specifically direct- 
ing the same. To contract for the furnishing of gas, either natural or 
artificial, steam or electricity, light or power, to said city or the 
citizens thereof, by any company or individual, and in such contract 
to fix the prices to be charged for the same in such city, subject to 
ordinances of such city in relation to consumption by private con- 
sumers. To design, order, contract for and execute the erection of any 
culvert, bridge, way, viaduct, tunnel or aqueduct within such city, or 
to enter into a contract with any company or individual for the joint 
erection and maintenance by such company or individual and such 
city of any such structure. To authorize and empower by contract, 
telegraph, telephone, electric light, gas, steam or street car or railroad 
companies to use any street, alley or public place in said city, and to 
erect necessary structures therein, and to prescribe the terms and con- 
ditions of such use; to fix by contract the prices to be charged to 
patrons: Provided, That such contract shall in all cases be submitted 
by the board to the council of such city and approved by them by 
ordinance before the same shall take effect. To license the digging of 
any coal or the removal of any material from the surface or under- 
neath the surface of any street, alley or public place in such city. 
To require bonds for damages and for the proper replacement of the 
street, and to refuse such license w4ien the public interest requires it. 
To direct the removal of any or all structures in the street, alleys or 
public places of such city, and to remove the same at the expense of 
the person maintaining the same, on their failure to make such re- 
moval. To design, order, contract for and execute the erection of any 
levee within the limits of such city, or within four miles thereof. To 
change any water-course, natural or artificial, within such city, or 
within four miles thereof. To remove all dead animals, garbage, filth, 
ashes, dirt, rubbish or other offal from such city, either by contract or 
otherwise. To prepare a general uniform plan for the drainage and 
sewerage of such city, and extend the same from time to time, to make 
and keep a map of all sewer, gas, water, electric wire conduits in such 
city, public and private, showing the size, depth, inclination, location 
and date of construction of the same, and to record therein every 
change which may be made in the same, together with all new .con- 
nections and improvements. To discharge all other duties of an 
executive character not falling within the sphere of some other execu- 
tive department or imposed upon this department by ordinance. To 
fill or drain any section of ground within such city limits or within 
four miles of its corporate limits, whenever water has or may become 
so stagnant or noxious as to be injurious to the public health and 
comfort, at the owner's expense, the same to be a lien and collectible 
by foreclosure: Provided, That not to exceed ten (10) per cent, of the 



495 EXECUTIVE OFFICERS AND DEPARTMENTS. § 600 

value of such lot or land, as valued and assessed upon the tax dupli- 
cate for city purposes, shall be expended in filling up or draining the 
same in any one year. To construct urinals and fountains in public 
places. To ^x, establish, change and keep a record of the grades of 
all streets, alleys and sidewalks. To contract for the furnishing of 
gas, either natural or artificial, water, steam or electricity, light or 
power of said city or the citizens thereof, by any company or indi- 
viduals, and in such contract to fix the prices to be charged for the 
same in such city, subject to ordinances of such city in relation to the 
consumption by private consumers: 

Provided, That all such contracts for the furnishing of gas, either 
natural or artificial, steam or electricity, light or power for said city, 
shall be approved by ordinance of the common council, before the 
same shall take effect: A7id, provided further, That the department of 
public works shall give notice that it will receive bids for such sup- 
plies at least three months before the expiration of any contract or 
contracts which are or may hereafter be in force, by publication in 
some daily newspaper in said city. [As amended. Acts 1895, p. 258. 
In force March 11, 1895.] Burns' Supp. 1897, § 3963. 

See notes, ante, § 440. 

Power over streets, alleys and bridg-es— Duties— Liabilities— Obstructions— Neg^li- 
gfence— Actions— Damag'es. — See ante, § 218 and notes. 

Plats —Dedication of streets— Prescription, etc.— See ante, § 218 and notes. 

Opening" and vacation of streets — Eminent domain, etc. — See ante, § 218 and 
notes. 

Improvement of streets— Fixing- and chang-ing- g-rade.— See a7ite, §§ 91, 218, 219, 
and post, §§ 1107-1135 and notes. 

Sewers, drains, etc.— See ante, § 124, clauses 26 and 43 and notes, and ante, §§ 127 
and 183 and notes ; also, post, § 1090, et seq., and notes. 

Corporations occupying' streets under municipal franchises— Duties and liabili- 
ties, etc. — See ante, § 218, notes. 

Water-works— Contracts, ordinances, etc.— See ante, § 124, clause 26 and note, and 
clause 43 and note, and § 138, et seq.; post, §§ 1061-1089 and 1372, et seq. 

Public lig-lits— Gas and electricity.— See ante, § 124, clause 28 and notes, and post, 
§ 1136, et seq., and notes ; also, post, § 1371, et seq. 

Eailroads— Occupation of streets, etc.— See ante, § 218 and notes, and post, § 1316, 
etseq., and notes. 

Street car companies— Occupation of streets, etc.— See ante, § 218 and notes, and 
post, § 1332 and notes. 

Teleg-rapb and telephone companies,— See ante, §§1 and 4 and notes, and § 218 and 
notes, and as to telephone companies, post, § 1380 and notes. 

Municipal property— Purchase— Sale— Control of, etc.— See ante, § 124 and notes. 

600. Streets — Repairs and cleaning — Cost — Contracts for work. — 

60. It shall be the duty of said department of public works to have 
general supervision over the streets and alleys of the city, and to 
keep the same in repair and to provide for cleaning the same. The 
cost of such repairs and of cleaning and sweeping such streets shall 
be paid out of the general fund. Nothing herein contained shall be 
so construed as to require the cost of any improvement of any street, 



§ 601 CITIES OF MORE THAN FIFTY THOUSAND. 496 

alley or sidewalk, or the cost of sprinkling the same as hereinafter 
provided, to be paid out of the general fund, except when the cost of 
such improvement shall exceed forty (40) per cent, of the value of 
the property to be assessed therefor, and then only in the manner and 
to the extent hereinafter provided. It shall be the duty of said 
department of public works, whenever any work ordered or under- 
taken by it is payable out of the general treasury of such city from 
funds belonging to such city, to cause said work to be done either by 
independent contract or by employes of said board as it may deem 
best; but whenever any w^ork ordered or undertaken by said board is 
to be paid for in whole or in part by assessments, and is in the nature 
of the improvements of any street, alley or sidewalk, or is for the con- 
struction of any sewer or any other improvement of a general nature, 
then said board shall cause said work to be done bv independent con- 
tract. [As amended, Acts 1895, p. 258. In force March 11, 1895.] 
Burns' Supp. 1897, § 3964. 

601. Letting contracts for work — Notice. — 61. Whenever said 
board shall order any work to be done which, either by order of 
said board or according to law, is to be performed by independent 
contract, said board shall prepare and place on file in the office of said 
department complete drawings and specifications of said work. 
Thereupon said board shall cause a notice to be published in one daily 
or weekly new^spaper of general circulation published in such city, 
once each week for two weeks, informing the public and contractors 
of the general nature of the work, and of the fact that the draw^- 
ings and specifications are on file in said office, and calling for 
sealed proposals for said work by a day not earlier than ten days after 
the last of said publication. The board may, in its discretion, fix a 
later day for receiving such sealed proposals, provided such date shall 
be mentioned in each of said notices. Said board shall, if a satisfac- 
tory bid be received, let such contract to the low^est and best bidder. 
Such board may, by order, impose further conditions upon bidders with 
regard to bonds and surety guaranteeing the good faith and responsi- 
bility of such bidders, or insuring the faithful completion of such 
work according to contract, or for keeping the same in repair for any 
length of time or for anv other purpose. [As amended, Acts 1895, 
p. 258. In force March 11, 1895.] Burns' Supp. 1897, § 3965. 

602. Expenses of board. — 62. All the expenses incurred or au- 
thorized by such board of public works shall be payable out of the 
general funds of such city appropriated to the use of such board and 
available for the particular purpose, except where this act specifically 
directs that the same is to be paid for by assessments against property 
holders. R. S. 1894, § 3966. 

CondeTRnaiion. 

603. Appropriation of property — Notice — Remonstrance. — 63. 

Whenever the board of public works shall desire to appropriate or 



497 EXECUTIVE OFFICERS AND DEPARTMENTS. § 604 

condemn for the use of such city any property, real or personal, or 
to open, change, lay out or vacate any street, alley or public place 
within such city, including proposed street or alley crossings of rail- 
ways in cases where the proposed street or alley is to cross a railway, 
it shall adopt a resolution to that effect, describing the property which 
may be injuriously or beneficially affected, and shall cause notices of 
such resolution to be published in some daily newspaper of general 
circulation in such city once each week for two weeks. Such notice 
shall name a date, not earlier than ten days after the last day of pub- 
lication, at which time such board will receive or hear remonstrances 
from persons interested in or affected thereby. Said board shall con- 
sider such remonstrances, if any, and thereupon take final action con- 
firming, modifying or rescinding their original resolution. Such 
action shall be final and conclusive upon all persons. [As amended, 
Acts, 1895, p. 258. In force March 11, 1895.] Burns' Supp. 1897, 
§ 3967. 

For decisions on eminent domain, opening and vacation of streets, etc., under the 
general law of 1867, see ante, § 218, et seq., and § 224, et seq., and notes. See, also, con- 
stitutional law, ante, §§ 4 and 11 and notes. 

604:. List of owners of property affected. — 64. Upon the final or- 
der being made, as provided in the preceding section, said board shall 
cause to be prepared a list or roll of all the owners or holders of prop- 
erty and valuable interests therein sought to be taken and to be in- 
juriously affected, and in case of opening, laying out, change or 
vacation of any street, alley or public place in such city, or within 
four miles thereof, a list of the owners or holders of property or 
valuable interests therein to be beneficially affected by such work. 
Such list shall not be confined to the owners of property along the 
line of the proposed work, but shall extend to and include all property 
taken, benefited or injuriously affected. In addition to such list of 
names, the same shall show, with reasonable certainty, a description 
of such property to be taken or affected, whether beneficially or injuri- 
ously, belonging to such persons. No greater certainty in names and 
descriptions shall be necessary to the validity of any assessment than 
is required in the assessment of taxes. [As amended, Acts 1895, p. 
258. In force March 11, 1895.] Burns' Supp. 1897, § 3968. 

605. Damages and benefits. — 65. Upon the completion of such 
list, said board shall proceed to award the damages sustained and 
to assess the benefits accruing to each piece of property on such list. 
When such assessments or awards are completed, said board shall 
cause a written notice to be served upon the owner of each piece of 
property, showing the amount of each assessment or award, by leav- 
ing a copy of the same at his last usual place of residence, in such 
city, or by delivering a copy to such owner personally. If such 
person be a non-resident, or his residence shall be unknown, then he 
shall be notified by publication in some daily newspaper of general 
circulation in such city once each week for three successive weeks. 

CiT. AND To.— 32 



§ 606 CITIES OF MORE THAN FIFTY THOUSAND. 498 

Such notices shall also name a day, not earlier than ten (10) days 
after service of notice or after the last publication, as the case may be, 
on which said board shall receive or hear remonstrances from persons 
with regard to the amount of their respective awards or assessments. 
Persons not in such list of assessments or awards, and claiming to 
be entitled to the same, shall be deemed to have been notified of the 
pendency of the proceedings bv the original notice of the resolution 
of the board. R. S. 1894, § 3969. 
See note, ante, § 446. 

606. Insane persons and infants. — 66. In case any person having an 
interest in the land affected by such proceedings shall be of unsound 
mind or an infant, said board of public works shall certify the same 
to the city attorney, and said city attorney shall forthwith apply to the 
proper court and secure the appointment of a guardian for such infant 
or person of unsound mind; and thereupon said board shall give no- 
tice to such guardian, who shall thereupon appear and protect the in- 
terest of his ward: Provided, that if such infant or person of unsound 
mind already have a guardian, such notice may be served on such 
guardian. The requisites of notice to such guardian shall be the 
same as in the case of other notice. If there be a defect in the pro- 
ceedings with respect to one or more interested persons, the same shall 
not affect such proceedings except so far as it may touch the interest 
or property of such person or persons, and shall not avail any other 
person concerned therein. In case of such defect, supplementary pro- 
ceedings of the same general character as those heretofore prescribed 
may be had in order to supply the same. R. S. 1894, § 3970. 

607. Kemonstrance — Appeal.- — 67. Any person notified, or deemed 
to be notified, under the preceding sections, may appear before such 
board on the day fixed for hearing such remonstrances with regard to 
awards and assessments, and to remonstrate against the same. After 
such remonstrances shall have been received, said board shall there- 
upon either sustain or modify the awards or assessments in the cases 
of such remonstrances, but in no other case. Any person thus re- 
monstrating who is aggrieved by the decision of the board, may, within 
twenty (20) days thereafter, take an appeal to the circuit or superior 
court in the county in which said city is located. Such appeal shall 
only affect the assessment or award of the person appealing. R. S. 
1894, § 3971. 

608. How appeal taken — Judgment final. — 68. Such appeal may be 
taken by filing an original complaint in such court against such city 
within the time named, setting forth the action of said board of public 
works in respect to such assessment, and stating the facts relied upon 
and showing an error on the part of such board. Such court shall re- 
hear the matter of such assessment de novo, and confirm, lower or in- 
crease the same as may seem just. In case such court shall reduce 
the amount of benefit assessed against the land of such property 
holder, or increase the award of damages awarded in his favor, the 



499 EXECUTIVE OFFICERS AND DEPARTMENTS. § 609 

plaintiff in sucii suit shall recover costs, otherwise not. The judg- 
ment of such court shall be final, and no appeal sha.ll lie therefrom. 
R. S. 1894, § 3972. 

609. Benefits — Liens — Assessment roll. — 69. On the completion 
of such assessment roll by said board of public works, the same shall be 
forthwith delivered to the department of finance, and from that time the 
respective amounts of benefits therein assessed shall severally be liens, 
superior to all other liens except taxes, against the respective lots or 
parcels of land upon which they are assessed. Said department of 
finance shall at once prepare a duplicate of said assessment roll of 
benefi-ts, the same to be known as the local assessment duplicate, and 
deliver the same to the treasurer. The duties of the treasurer and of 
the department of finance in respect thereto shall be the same as are 
hereinafter more specifically described with regard to assessments for 
street improvements. R. S. 1894, § 3973. 

610. Assessments, when due — Foreclosure. — 70. Said assessments 
of benefits shall be due and payable to the treasurer from the time of 
the delivery of said assessment duplicate to said treasurer. If not paid 
within sixty (60) days thereafter, the said city by its attorney shall 
proceed to foreclose said liens in a court of competent jurisdiction as 
mortgages are foreclosed, with similar rights of redemption, and 
have the same sold to pay such assessments. Such city shall recover 
costs, with a reasonable attorney's fee, and interest from the expira- 
tion of the sixty (60) days hereinbefore allowed for payment, at the 
rate of six per cent. (6 per cent. ) per annum. In all cases where the 
party against whom the assessment is made is a resident of such city, 
demand for the payment of the same shall be made by delivering to 
him personally, or leaving at his last and usual place of residence, a 
notice of such assessment and demand for payment. R. S. 1894, 
§ 3974. 

See note, ante, § 451. 

611. Wliat damages city pays.™ 71 . Said board of public w^orks shall 
have the pov/er to determine what, if any, part of the damages awarded 
shall be paid out of funds appropriated for the use of such board by 
the common council: Provided, That not more than two thousand 
dollars ($2,000) in damages shall be paid out of the city funds for 
any improvement or condemnation unless pursuant to an ordinance 
appropriating for the specific improvement or condemnation. All ben- 
efits assessed and collected by the treasurer shall be subject to draft, in 
the usual manner, upon certificate by the board of public works in 
favor of persons in whose favor damages have been awarded. Kwy 
surplus remaining above actual awards shall belong to such city. 
Said board mav delay proceedings until such benefits have been col- 
lected. R. S. i894, § 3975. 

612. Damages — Payment. — 72. It shall be the duty of the board 
of public w^orks, upon the completion of their award of damages, 
or whenever any time for delay as above mentioned shall have expired. 



§ 613 • CITIES OF MORE THAN FIFTY THOUSAND. 500 

to make out certificates for the proper amounts and in favor of the 
proper persons, upon the presentation of which to the head of the de- 
partment of finance such person shall be entitled to a warrant on the 
cit}^ treasurer. Such certificates or vouchers shall, whenever practica- 
ble, be tendered actually to the persons entitled thereto, but where 
this is impracticable the same shall be kept for such person in the 
office of said board of public works, and the making and fixing of 
such certificate shall in all cases be deemed to be a valid and effectual 
tender to the person entitled thereto, and the same shall be delivered 
to him on request. In case of a dispute, or doubt as to which of the 
various persons said money shall be paid, said board shall make out 
such certificate in favor of the city attorney for the use of the persons 
entitled thereto, and said attorney shall thereupon draw the money 
and pay the same into court in a -proper proceeding, requiring the 
various claimants to interplead and have their respective rights de- 
termined. In any case where an injunction is obtained because dam- 
ages have not been paid or tendered, said board may tender such 
certificate for the amount thereof with interest from the time of entry 
upon the property, if any has been made, and all accrued costs, and 
thereupon the injunction shall be dissolved. The pendency of an ap- 
peal shall not affect the validity of a tender made under this section, 
but such city shall be entitled to proceed with its appropriation of the 
property in question. R. S. 1894, § 3976. 

Street Improvements, 

613. Improyement of streets aud sidewalks^ — Order — Notice — As- 
sessments — Liens — Payment. — 73. The department of public works 
shall have authority to designate the kind of sidewalks that shall be laid 
in the city. It shall have the right to classify the same, and in order- 
ing the improvement thereof it shall be sufficient to refer to the same 
by the name of the class designated. Whenever such department shall 
deem it necessary that any sidewalk should be made or repaired it 
shall make an order to that effect designating the kind of sidewalk to 
be made, or the character of the repairs required, and the property 
which the same fronts or abuts upon. It shall thereupon give notice 
of such resolution to be served upon the owner of the property abut- 
ting on such sidewalk by leaving a copy of the same at his last or 
usual place of residence, or by delivering a copy to such owner per- 
sonally. If such person be a non-resident of the state, or his resi- 
dence shall be unknown, -then he shall be notified by publication in 
some newspaper of general circulation published once each week for 
two successive weeks. Such notices shall name a day not earlier than 
ten (10) days after service thereof, or after the last publication as the 
case may be, on which said board will hear remonstrances against the 
making of such sidewalk or such repairs. Such board shall there- 
upon hear such remonstrances and shall make such order as it may 
deem necessary, either rescinding, confirming or modifying said 



501 EXECUTIVE OFFICERS AND DEPARTMENTS. § 613 

previous order. Should said board finally determine upon the neces- 
sity for making such sidewalk or repairing the same, it shall on the 
day named so order and require the owner thereof to make the same 
within a time to be limited and fixed by the board not less than thirty 
days from the date of such order. Should such person at the end of 
such time have failed to complete said sidewalk or to have the same 
in actual process of completion to the satisfaction of the board, it shall 
proceed to have the same done by independent contract. It shall be 
lawful for said board at the beginning of each year, or at such other 
stated intervals as to it shall seem best, to advertise for bids for the 
making of all sidewalks within the city, notice of which shall be 
given in the manner prescribed for advertising for the improvements 
of streets and alleys. Said board may let the contract for making such 
sidewalks to the lowest and best bidder. When this is done it shall not be 
necessary for said board to advertise for bids for the building of each 
sidewalk, but it shall be lawful for said board, upon the failure of 
such owner to build said sidewalk within the time prescribed, to at 
once cause the same to be made by the person having the contracts 
for the sidewalks within the city. Upon the completion of said side- 
walk said department shall cause to be prepared an assessment list, 
and shall notify such owner in the same manner as in this section above 
provided. Said notice shall fix a time and place when the owner 
may remonstrate against such assessment. On said day such owner 
may appear and remonstrate, and the board shall take final action, 
and shall assess such owner and such real estate for the cost of such 
improvement. On the completion of such assessment the same shall 
be forthwith delivered to the department of finance and said assess- 
ment shall be treated in like manner as assessments for street and 
alley improvements, but the owner of such property shall not be en- 
titled to pay the same in ten (10) annual installments, but the same 
shall be payable in cash in like manner as street and alley improve- 
ments are paid by persons failing to take the ten (10) year install- 
ment plan. Such assessment shall be a lien on the abutting real es- 
tate from the time such assessment roll is delivered to the department 
of finance, and the rights and liabilities of the city, the contractor 
and the owner shall be as far as practicable the same as in the case of 
street and alley improvements, except as to paying therefor in install- 
ments. The common council shall have power to pass all ordinances 
necessary to carry out the provisions of this act in relation to the im- 
provement of sidewalks not inconsistent with the provisions hereof. 

Whenever the board of public works shall order the improvement of 
any street, alley or other public place in such city, in whole or in 
part, it shall adopt a resolution to that effect, setting forth a descrip- 
tion of the place to be improved, and full details, drawings and speci- 
fications for such work. Notice of such resolution shall be published, 
remonstrances heard, said original resolution modified, confirmed or 
rescinded, in the same manner as heretofore more specifically provided 
by this act with regard to the condemnation of property and the open- 



§ 614 CITIES OF MORE THAN FIFTY THOUSAND. 502 

ing of streets. If such original resolution be confirmed or modified it 
shall be final and conclusive on all persons, unless, within ten days 
thereafter, two-thirds of all the resident freeholders upon such street 
or allev remonstrate against such improvement. In case of such re- 
monstrance the improvement shall not take place, unless specifically 
ordered by an ordinance within sixty days thereafter, passed by a two- 
thirds vote of the council, and approved by the mayor. The word 
street or alley as used in this act, so far as the same relates to the im- 
provements thereof, shall not be deemed to include any sidewalk, but 
the improvem.ent of sidewalks shall be governed exclusively^ by the 
provisions hereinbefore set forth for the improvement of sidewalks, 
and by such ordinances as the common council shall pass in reference 
thereto. [As amended. Acts 1895, p. 258. In force March 11, 1895.] 
Burns' Supp. 1897, § 3977. 

See note, ante, § 454. 

For powers over streets, duties and liabilities, improvement of streets, etc., under the 
general law of 1867, and amendatory and supplemental laws, see ante, §§ 218-223 and 
notes, andiJos^, §§ 1107-1135 and notes. 

For constitutional provisions and decisions see ante, §§4 and 11 and notes. 

6M. Expense of improyements — How assessed.— 74. If said board 
shall finally order such improvement and shall advertise for bids, and let 
the contract for the same, the cost of any street or alley improvement 
shall be estimated according to the whole length of the street or alley, 
or so much thereof to be improved as is uniform in the extent and 
kind of the proposed improvement per running foot, and the total 
cost thereof, exclusive of one-half the cost of street and alley intersec- 
tions, shall be apportioned upon the lands or lots abutting thereon. 
The remaining one-half cost of street and alley intersections shall be 
apportioned upon the lands or lots abutting on the street or alley in- 
tersecting the street or alley under improvement for a distance to the 
street line of the first street parallel to the street or alley under im- 
provement in either direction from the street or alley improved. 
Should a street or alley enter into and not cross the street or alley under 
improvement, then the assessment for the cost of one-half of said en- 
tering street or alley, measured to the center line of the street or alley 
under improvement, shall be made on the lots or lands abutting on 
said entering street or alley, for a distance to the street line of the first 
street parallel to the street or alley under improvement, and such last 
named assessment shall be made pro rata upon the lots or lands 
abutting on said street or alley. Such assessment shall be made 
without regard to the assessment for taxation, as hereinafter pro- 
vided. Such city shall be liable to the contractor for the contract price 
of such improvement to the extent of the moneys actually received by 
such city from the assessments for such improvements hereinafter pro- 
vided for , and the owners of property bordering on such street or alley shall 
be liable to the city for their proportion of the cost, exclusive of one-half 
the cost of street and allev intersections, in the ratio of the front line of 



503 EXECUTIVE OFFICERS AND DEPARTMENTS. § 615 

their land or lots, whether platted or not, owned by them, to the 
whole cost of the improvement of that part of the said street or alley on 
which said land or lots are located, and which is uniform in extent 
and quality of improvement. And the owners of lots or lands on the 
streets or alleys intersecting or entering into such street or alley shall 
be liable to the city for their proportion of the cost of improving the 
one-half of the street and alley intersections, in the proportion that their 
front line on said street or alley bears to the sum of the length of the 
front line of said lots or lands abutting on said street or alley for a 
distance, as provided above, from the street or alley under improve- 
ment. Said city shall have separate and several liens upon such 
lands or lots from the time the contract for such improvement is finally 
let, for the respective assessments against each lot or parcel of land: 
Provided, That when any such street or alley is occupied by the tracks 
of any railroad company, then so much of the cost of said improve- 
ment as said railroad company is liable for, shall be assessed against 
said railroad company, shall be a lien on its tracks and right of way 
from the time such contract is let, and shall be paid for by such rail- 
road in cash. Such railroad company shall be liable to the contractor 
for the amount of its assessment and the contractor may recover said 
amount from such company and enforce the lien therefor in any court 
of competent jurisdiction. Nothing herein contained shall change or 
affect any contract heretofore made between the city and any street or 
other railroad company. And, provided, further, That when the as- 
sessment against any lot shall exceed forty (40) per cent, of the value 
thereof as assessed for taxation, then such lot shall only be assessed 
to an amount equal to forty (40) per cent, of its assessed value, and 
the remainder of the assessment against such lot shall be paid out of 
the treasury of such city. When a street extending along the side of 
any lot is improved, and such lot is less than twenty-five feet in 
width, then such lot may be assessed for an amount not exceeding 
forty (40) per cent, of the assessed value of twenty-five feet in width 
of such real estate. [As amended, Acts 1895, p. 258. In force March 
11, 1895.] Burns' Supp. 1897, § 3978. 
See notes, ante, § 455. 

615. Assessments — Liens, — 75. Lots or lands bordering on such 
street or alley shall be assessed and liable to such assessment primarily, 
and if not sufficient to pay for the same, then the lots or land shall 
be liable for a distance back from the front line along such street or 
alley of fifty feet, whether the same shall be owned by the same or differ- 
ent persons. In case said fifty feet shall not sell for enough to pay 
such assessment, then the ground for a distance of one hundred feet 
farther back shall be liable to sale; and in case of unimproved or U3i- 
platted ground, if said one hundred and fifty feet fail to sell for 
enough to pay the assessment, the whole of such land shall be liable 
to sale. This section shall be deemed to include the assessment, prin- 
cipal and interest, together with the cost of foreclosure and a reasonable 



§ 616 CITIES OF MORE THAN FIFTY THOUSAND. 504 

attorney's fee. The lien of the same shall have precedence over all 
liens except taxes. Any mistake in the description of property, or in 
the name of the owner, shall not vitiate such liens. R. S. 1894, 
§ 3979. 
See notes, ante, § 456. 

616. Payment by instaliments. — 76. Whenever said board of pub- 
lic works shall order the improvement of any street or alley, as pro- 
vided in the preceding sections, the assessment for such improvement 
may, at the option of each property-holder, be payable in ten (10) an- 
nual installments, as follows. Ten (10) per cent, of the principal, to- 
gether with all accrued interest on the entire assessment on or before 
the third Monday of April next succeeding the allovrance of the final 
estimate on such work by said board, except where such estimate has 
been made between March 15 and October 1, of any 3^ear, in which 
case such first installment shall be payable on the first Monday of No- 
vember next succeeding such estimate. The next payment on said as- 
sessment shall be six (6) months' interest on the unpaid principal, 
payable at the end of six months from the date upon which the first 
installment fell due. The next payment on said assessment shall 
be ten (10) per cent, upon the principal and six (6) months' inter- 
est on the unpaid principal, payable on or before the dates above 
mentioned, as the case may be, accruing one year after the first in- 
stallment was payable, and so on, thereafter ten (10) per cent, of the 
original principal Vvdth six months' interest on the unpaid principal 
once each year, and six months' interest in alternate turn with each 
annual payment of principal and interest until the entire principal and 
interest has been paid. Interest not exceeding six (6) per cent, shall 
be specified by said board in the resolution for improvements, and 
shall commence from the date of the allowance of such final estimate. 
R. S. 1894, § 3980. 

617. Certificate of engineer — Assessment roll — Notice — Eemon- 
stranee. — 77. Whenever any such improvement is completed it shall 
be the duty of the civil engineer to certify said fact to the department 
of public works, together with his final estimate of the cost of such 
improvement. It shall thereupon be the duty of the board to prepare 
an assessment list assessing each parcel of real estate and any railroad 
company liable for any portion of such assessment for its proportion, 
of such cost as hereinabove provided. When such assessment list is 
completed said board shall fix a time and place when and where 
objections to such assessment will be heard, and shall cause notice 
thereof to be given by publication in a newspaper of general cir- 
culation published and printed in such city once each week for two 
(2) successive weeks. Such notice shall name a day not earlier than 
ten (10) days after the last publication, on which said board wnll re- 
ceive and hear remonstrances from persons with regard to their re- 
spective assessments. On the day named in such notice said board 
shall proceed to hear and determine such remonstrances and may 



505 EXECUTIVE OFFICERS AND DEPARTMENTS. ' § 618 

change, modify or confirm the same. Said assessment roll shall con- 
tain the names of the property holders and a description of the prop- 
erty assessed for such improvement, and shall contain the pro rata 
assessment against each piece of property. After hearing such re- 
monstrances said department shall deliver such assessment roll as 
modified or confirmed to the department of finance. [As amended, 
Acts 1895, p. 258. In force March 11, 1895.] Burns' Supp. 1897, 
§ 3981. 
See note, ante, § 458. 

618. Fiual estimate — Copy of assessment roll to treasurer. — 78. 

Whenever the board of public works shall approve and accept the en- 
tire work under an}^ contract and allow a final estimate therefor, it 
shall be the duty of the department of finance to forthwith deliver to 
the treasurer a certified copy of the assessment roll. Such duplicate 
assessment roll shall be known as the local assessment duplicate, and 
shall be appropriately prepared, showing the amount due on each 
piece of property, if paid in cash within the time limited, together 
with necessary columns, in which such assessment shall be extended, 
showing the amount of each installment, and when payable, when- 
ever the same shall be paid in installments, together with the interest 
due at each spring and fall payment, until the same shall be fully paid. 
Said book shall also have appropriate columns in which payments 
may be properW credited, and also a place for the satisfaction of the 
lien by the treasurer. All assessments, whether payable in install- 
ments or not, shall be payable to the treasurer, whose duty it shall be 
to receive the same and give proper receipts therefor and enter the 
proper credit and satisfaction in said book or duplicate assessment 
roll. R. S. 1894, § 3982. 
See notes, ante, § 459. 

619, Agreement by persons paying by installments, — 79. Who- 
ever desires to exercise such privilege of payment by installment shall 
at any time before the expiration of thirty (30) days after the allow- 
ance of the final estimate aforesaid, enter into an agreement in writing, 
that in consideration of such privilege he will make no objection to 
any illegality or irregularity with regard to the assessment against his 
property and will pay the same as required by law with the specified 
interest. Such agreement shall be filed in the office of [the department 
of] finance. In all cases where such agreement has not been signed 
and filed within the time limited, the entire assessment shall be pay- 
able in cash without interest before the expiration of said thirty (30) 
days. After said thirty days, if not paid when due such total assess- 
ment shall bear interest at the rate of six per cent. (6 per cent.) from 
the date of the final estimate. Persons signing and filing the agree- 
ment within the time limited, and entitled to pay in installments, 
may nevertheless at any time after the expiration of the first year, pay 
up their entire assessment and stop the interest thereon, and be relieved 



§ 620 CITIES OF MORE THAN FIFTY THOUSAND. 506 

of the lien of the same, on condition that they at the time pay up all 
accrued interest, and also interest up to the time the next installment 
of interest is payable: Provided, That before such persons shall be 
entitled to make such prepayment they shall give notice in writing 
at the treasurer's office of their intention so to do, six months in ad- 
vance of the time when such payment is made. R. S. 1894, § 3983. 
See notes, a7ite, § 460. 

630. Duty of treasurer, — 80. It shall be the duty of the treasurer 
to receive the same, keep all accounts thereof, and give proper vouchers 
therefor. The department of finance shall charge the treasurer with the 
amounts of such assessments and interest as it accrues. The department 
of finance shall carefully keep a separate account of the fund arising 
from each particular improvement ordered by the board of public works 
pursuant to this act, and no proceeds arising from assessments for the 
improvement of any particular street or alley shall be diverted to the 
payment of any other improvement whatever. The proceeds shall in 
each case constitute a separate special fund for the payment of con- 
tractors for the particular work, upon the allowance of estimates by the 
board of public works, or for the security and payment of street im- 
provement bonds, if any are issued, as hereinafter provided for such 
street or alley. R. S. 1894, § 3984. 

See note, ante, § 461. 

621, Street improyement bonds. — 81. For the purpose of antici- 
pating the collection of such assessments, the department of finance 
shall issue street improvement bonds, payable out of the funds actually 
paid to and collected by such city on such account, the proceeds of the 
same to be applied exclusively to the payment on the particular street 
or alley for the anticipation of whose assessment the same are issued. 
Said bonds shall bear the name of the street or alley for which they 
are issued. Separate bonds shall be issued for each separate lot or 
■parcel of ground, but where several lots or parcels of ground on the 
same street are owned by one person, one bond may be issued for the 
entire assessment of such person. Said bonds shall bear interest at a 
rate not exceeding six per cent, per annum, and shall have coupons 
attached representing each installment of interest, or of principal and 
interest, as the same falls due. Said bonds shall be payable in in- 
stallments as follows: Ten per cent, of the principal, together with 
all accrued interest on the same, on the third Monday of April next 
succeeding the allowance of the final estimate of such work by said 
board, except where such estimate has been made between March 15 
and October 1 of any year, in which case such first installment shall 
be payable on the first Monday of November next succeeding such 
estimate; the next payment on such bonds shall be six months' inter- 
est on the entire principal, payable at the end of six months from the 
date upon which the first installments upon such bonds fell due; the 
next payment on such bonds shall be ten (10) per cent, of the origi- 



507 EXECUTIVE OFFICERS AND DEPARTMENTS. § 622 

11 al principal and six months' interest on the unpaid principal paya- 
ble on the dates above raentioned, as the case may be, accruing one 
year after the first installment was payable, and so on thereafter ten 
per cent, of the original principal with six months' interest on the 
unpaid principal once each year, and six months' interest on the 
unpaid principal in alternate turn with the annual payment of princi- 
pal and interest until the entire principal and interest shall have been 
paid. In case any person shall exercise his right of prepayment of 
his assessment as hereinbefore provided, all liability shall thereupon 
cease as to the property, the assessment which is so paid, and the lien 
against such property shall be extinguished as rapidly as the treasurer 
shall collect funds, by reason of such prepayments, the same shall be 
applicable to the outstanding bonds in the order of their serial num- 
ber, and interest thereon shall cease 'pro tanto from the time of such 
collection. It shall be the duty of the treasurer to pay to the person 
presenting any coupon for payment of any bond on vv^hich such pre- 
payment will properly apply, of the amount applicable on such bond, 
and on demand by the holder of said bond shall pay the same. Said 
board may provide in its original resolution of improvement for the 
issue of such bonds directly to the contractor, in which case it shall 
be the duty of the department of finance, upon the allowance of the 
final estimate by the board of public works, to issue the same directly 
to the contractor. Otherwise they shall be issued and sold as other 
city bonds. Said bonds shall bear date as of the date of the allowance 
of the final estimate, and shall bear interest from said day. After the 
issue of said bonds no suit shall lie to enjoin the collection of any 
assessment, and the validity of the same shall not be questioned. 
Such bonds, when issued, shall transfer to the owner thereof all right, 
title and interest in and to the assessment and liens upon the respect- 
ive lots and parcels of ground hereinbefore provided for, with full 
power to enforce the collections thereon by a foreclosure in any com- 
petent court of jurisdiction as mortgages are foreclosed, recovering rea- 
sonable attorney's fees and costs, and with the same right of redemp- 
tion. [As amended. Acts 1895, p. 258. In force March 11, 1895.] 
Burns' Supp., 1897, § 3985. 
See note, ante, § 462. 

622, Failure to pay installment — All due. — 82. Failure to pay any 
installment of principal or interest when the same is due shall bring 
all installments of principal yet unpaid forthwith due and payable. If 
such city shall fail to collect any unpaid assessments or installment 
thereon when due, no liability shall thereby accrue against such city, 
but the owner of the bonds hereinbefore provided for, or in the case no 
bonds have been issued, then the person to whom is due and owing 
the amount of such unpaid assessment for the performance of such 
work, shall have the right to proceed in any court of competent jurisdic- 
tion to foreclose the liens or unpaid assessments, recovering interest, 
costs and a reasonable attorney's fee, and to have the proceeds of sale 



§ 623 CITIES OF MORE THAN FIFTY THOUSAND. 508 

applied on his claim. It shall be the duty of the county clerk to cer- 
tify to the city treasurer all satisfaction of assessment liens by such 
sale, and the treasurer shall enter the [same] of record. R. S. 1894, 
§ 3986. ' 

See notes, ante, § 463. 

623. Change of levees and water-courses. — 83. Whenever the board 
of ' public works shall order the erection or change of any levee, or 
the change of any water-course, natural or artificial, or the drainage 
of section of ground, it shall cause the necessary dravrings and speci- 
fications to be prepared and filed in such office, and shall publish a 
notice of the resolution ordering the work to be done, shall hear re- 
monstrances, modify, confirm or rescind their original resolutions, pre- 
pare a list of property-holders beneficially or injuriously affected by 
such work, advertise for bids for such work, let the same by contract, 
assess benefits and award damages, and in these and all other respects 
proceed in accordance with the provisions of this act relating to the 
appropriation of property and laying out of streets. R. S. 1894, § 3987. 

624. Act governs levee assessments. — 84, The provisions of this 
act for the liens of assessments, preparation of the duplicate assess- 
ment roll by the department of finance, delivery of such roll to the 
treasurer, the collection of assessments, right of election of property- 
holders to pay the same in installments, the issue of bonds to antici- 
pate the same, and all other provisions with regard to street improve- 
ment assessments, shall govern in the matter of levee assessments so 
far as the same are applicable. R. S. 1894, § 3988. 

625. Local sewers — Construction. — 85. Whenever the board of 
public works shall order the construction of any local sew^er or 
drain, it shall cause the necessary drawings and specifications for such 
w^ork to be prepared and filed in such ofiice; shall cause a notice of the 
adoption of the resolution ordering the work to be done to be published 
in some daily newspaper of general circulation in such city once each 
week for two weeks. Such notice shall name a date not earlier than ten 
days after the last day of publication, at which such board will receive 
or hear remonstrances from persons interested in or affected thereby. 
On the date set said board shall consider such remonstrances, if any, 
and thereupon take final action, confirming, modifying or rescinding 
their original resolution. Such action shall be final and conclusive 
upon all persons. If such original resolution be confirmed or modified, 
said board shall cause a notice to be published in some newspaper 
of general circulation in such city once each week for two weeks, 
informing the public and contractors of the general nature of the 
work, and of the fact that the drawings and specifications are on file 
in the ofiice of the board, and calling for sealed proposals for such 
work by a day not earlier than ten days after the last of said publi- 
cations. The board may, in its discretion, fix a later [day] for re- 
ceiving such sealed proposals, providing such day shall be mentioned 
in each of these notices. Whenever such sewer or drain shall, from 



509 EXECUTIVE OFFICERS AND DEPARTMENTS. § 626 

its size and character, be intended and adapted not only for use by 
owners of abutting property along the line of such sewer or drain, but 
is also intended and adapted for receiving sewerage from collateral 
drains already constructed, or which may be constructed in the 
future, the board of public works shall prepare a map which will give 
thereon the exact course of proposed sewer and its appurtenances, and 
which will clearly show, by boundary lines, the total area or dis- 
trict to be drained and to be assessed for the construction of said 
sewer; shall prepare all necessary profiles, drawings and specifications 
for such work, which map, profiles, drawings and specifications shall 
be placed on file in the office of said board; shall publish a notice of 
the adoption of the resolution, ordering the work to be done, and shall 
describe in such resolution, and in such advertisement, the boundary 
lines of the district or area intended to be drained by such sewer and 
to be assessed for the cost of the same, and such publication of, the 
adoption of said resolution shall constitute legal notice to all owners 
or holders of property, or persons having valuable interests therein 
within the bounds of the district, or area described, that such property 
in such district or area is to be assessed for the construction of said 
sewer. Such publication shall be made in some daily newspaper of 
general circulation in such city once each week for two weeks, and 
shall name a day not earlier than ten ( 10 ) days after the last day of publi- 
cation, at which time the said board will receive or hear remonstrances 
from the persons interested in or affected by the construction of said 
sewer. On the date set, said board shall consider such remonstrance, if 
any, and thereupon take final action, confirming, modifying or rescind- 
ing their original resolution. Such action shall be final and conclusive 
upon all owners or holders of property, or persons having valuable 
interests therein, in the district, or area, intended to be drained and 
assessed for the construction of said sewer. Advertisements for bids 
shall be made in the same manner as for the construction of any local 
sewer or drain above provided for. [As amended, Acts 1895, p. 258. 
In force March 11, 1895.] Burns' Supp. 1897, § 3989. 

See notes, ante, § 466. 

Sewers, drains, etc., and construction of, under the general law. See ante, § 124, 
clauses 26 and 43 and notes, and §§ 127 and 183 and notes, 2^116. post, §§ 1090, et seq., and 
notes, and 1107, et seq., and notes. 

626c Cost of sewers — Assessment. — 86. Whenever any such 
sewer shall from its size and character be intended and adapted only 
for local use by the property holders along the line of the street or alley 
on which it is constructed, and in the opinion of such board is not in- 
tended or adapted for receiving sewage from collateral drains, then 
and in that case, the entire cost of said sewer shall be paid for by the 
holders of property abutting on the street, alley or public highway 
on which said sewer shall have been constructed. The cost of such 
sewer shall be estimated according to the total number of square feet 
of property abutting on the line of said sewer, and such cost shall be 



§ 627 CITIES OF MORE THAN FIFTY THOUSAND. 510 

apportioned on the lands or lots abutting thereon in proportion that 
their area bears to the total assessed area: Provided, That in making 
such assessments against any unplatted lands the depth of the same 
from the front line thereof shall not be assumed greater than two 
hundred (200) feet or less than the depth of the platted ground next 
adjoining such unplatted ground nearest to the center of the city. In 
case such unplatted ground borders upon two streets or alleys inter- 
secting each other and assessments have already been made against 
such land for a sewer on one side, such assessment extending back 
for a distance as above described, then, and in that case, the assess- 
ment shall be made for a distance of only fifty (50) feet back from the 
line of the street or alley on which the sewer is located, [As amended, 
Acts 1895, p. 258. In force March 11, 1895.] Burns' Supp. 1897, 
§ 3990. 

See notes, cmte, § 467. 

627. General sewers — ^Costs — Assessment.— 87. Whenever, in the 
opinion of such board, any sewer or drain ordered to be constructed, 
or any enlargement of one already constructed, shall, from its size 
and character, be intended and adapted not onl}^ for use by the 
abutting property holders along the line of said drain or sewer, but 
is also intended and adapted for receiving sewerage from collateral 
drains already constructed or which may be constructed in the future, 
then, in that case, such board shall make a division of the cost of such 
w^ork. So much of said cost as shall be equivalent to the construction 
of an adequate local sewer not adapted to receive sewerage from collat- 
eral drains or sewers, shall be paid for exclusively by the abutting 
property holders in the same manner and to the same extent as local 
sewers are paid for by them. The excess of cost over and above v>^hat 
would be equivalent to the cost of a local sewer shall be assessed one- 
half against the city and paid out of the general fund, and one-half 
against each piece of property in the district or area to be drained, in 
the proportion its area bears to the total area of the district, including 
abutting property holders as w^ell as the holders not situate on the 
line of such drain or sewer. [As amended. Acts 1895, p. 258.- In 
force March 11, 1895.] Burns' Supp. 1897, § 3991. 

628. Assessment roll — l^otice — Remonstrance, — 88. In making 
assessments against each lot or parcel of land, said board of public 
works shall, as soon as any contract has been let for the construction 
of any sewer or drain, make out an assessment roll with the names 
of property holders and descriptions of the property assessed for 
such proposed sewer or drain. Said department shall thereupon fix 
a time and place when and where objections to such assessment will 
be heard, and shall cause notice thereof to be given, and shall hear 
remonstrances thereon in like manner as in case of assessments for 
street improvements. The assessment roll, when completed accord- 
ing to these provisions, shall be delivered to the department of finance 
in the same manner as street improvement assessment roll, and the 



511 EXECUTIVE OFFICERS AND DEPARTMENTS. § 629 

treasurer and the department of finance shall thereupon discharge the 
same duties in respect thereto as are hereinbefore prescribed in rela- 
tion to street improvement assessments. The provisions of this act in 
the relation to the payment of street improvement assessment by install- 
ment, and the issuance of bonds to anticipate the same, shall also ap- 
ply to the payment of assessments for the construction of sewers, 
drains, levees, or for the change of any water-course, or the drainage 
of anv section of ground. [As amended, Acts 1895, p. 258. In 
force March 11, 1895.] Burns' Supp. 1897, § 3992. 



Sprinkling. 

629. Sprinkling streets — Notice for bids — Remonstrance. — 89. 

Whenever such board of public works shall order any street, alley or 
public place to be sprinkled it shall cause the necessary specifications 
be sprinkled it shall cause the necessary specifications for such work 
to be prepared and filed in such office, shall publish a resolution or- 
dering the Avork to be done, shall hear remonstrances, modify, con- 
firm or rescind their original resolution, shall advertise for bids 
and let the same by contract, as more specifically provided in this act 
wnth relation to the appropriation of property and the laying out of 
streets: But provided, That if tw^o-thirds of all the property owners 
upon such street, alley or public place remonstrate against sprinkling 
the same, the same shall not be done unless specifically authorized by 
an ordinance within sixty (60) days thereafter, passed by a two-thirds 
vote of the council and approved by the mayor. [As amended. Acts 
1895, p. 258. In force March 11, 1895.] Burns' Supp. 1897, § 3993. 

630, Cost of sprinkling — Contracts. — 90. The cost of such sprink- 
ling shall be assessed pro rata against the property-holders along the 
line of such street, alley or public place as the cost of street improve- 
ments is assessed. That such city shall not be liable to pay for the 
sprinkling of any street or alley crossing, but the total cost of such 
sprinkling shall be paid for by the abutting property-holders. Such 
board may, at its option, embrace in one order or resolution, and also 
in one contract, any number of streets, alleys or public places for 
which the specifications for such sprinkling are uniform, or such board 
may include in one resolution and contract such streets as to w^hich the 
specifications for sprinkling are not uniform: Provided, That such con- 
tracts and the bids therefor shall separately state the cost of sprinkling 
streets or alleys which are uniform, with regard to the specifications 
to such sprinkling. In such cases such board may accept part of 
such bid on one group of streets uniform in their specifications, and 
reject other parts of such bids on other groups of streets. [As amended, 
Acts 1895, p. 258. In force March 11, 1895.] Burns' Supp. 1897, 
§ 3994. 

See notes, aiite, §§ 472-473. 



§ 631 CITIES OF MORE THAN FIFTY THOUSAND. 512 

631. Payment for sprinkling — Time of contract. — 91. Unless 
otherwise provided by ordinance, the duties of the department of 
finance and the treasurer, the rights and liabilities of the contractor 
and the city in relation to such sprinkling shall be the same as in 
the case of street improvement assessments. Such assessments shall 
be payable on the first Monday in November of each year. The pro- 
visions of this act in relation to issuing bonds and paying in install- 
ments shall have no application to the cost of street sprinkling. The 
common council shall have power by ordinance to prescribe the man- 
ner in v/hich the cost of street sprinkling shall be assessed and col- 
lected. The cost of such sprinkling shall be a lien on the abutting 
real estate from the time the contract thereof is entered into: Pro- 
vided, That no contract for sprinkling shall be made to continue for a 
period of more than two years, unless the same shall be authorized and 
confirmed by resolution of the common council. And provided, further, 
That the department of public w^orks may cause such sprinkling to be 
done directly by persons to be employed by it for such purpose, and 
may assess the cost thereof against the abutting property. An assess- 
ment list shall be made out, a time fixed for hearing objections there- 
to, and notice thereof given in the manner provided for assessments 
for street improvements. [As amended, Acts 1895, p. 258. In force 
March 11, 1895.] Burns' Supp. 1897, § 3995. 

D. DEPARTMENT OF PUBLIC SAFETY. 

632. Board of public safety — Appointment — Bonds. — Salaries.— 

92. The department of public safety shall be under the charge of a 
board of three commissioners, to be appointed by the mayor of such 
city as hereinbefore provided. No more than two of said commis- 
sioners shall be of the same political party. Said commissioners shall 
give bond to such city, to be approved by and filed with the depart- 
ment of finance, for the faithful performance of their duties respec- 
tively, as required by ordinance. Said board shall have the care, 
management, supervision, and exclusive control of all matters relating 
to the fire and police force, fire-alarm, telegraph, erection of fire- 
escapes, inspection of buildings and boilers, market places, and food 
sold therein, pounds and prisons. Said board shall have powder to 
purchase all necessary supplies and apparatus, and make all repairs 
needed in its department, subject to the same provisions as herein 
prescribed for the exercise of similar powers by the department of 
public works. Said commissioners shall receive annual salaries of 
$400 each. R. S. 1894, § 3996. 

Fire department and metropolitan police and fire department under the g-eneral 
law.— See ante, §§ 256, et seq., 296, et seq., and notes. 

633. Bules for goyernment of police — Qnorum of board— Clerk. — 

93. Said commissioners shall adopt rules for the appointment of 
members to said fire and police forces, their regulation and duties sub- 



513 EXECUTIVE OFFICERS AND DEPARTMENTS. § 634 

ject, however, to the laws of the state and to the ordinances of the com- 
mon council. Any two of said commissioners shall constitute a quo- 
rum. Said commissioners shall adopt rules and regulations with 
regard to the time of holding regular and called meetings, and of 
giving notice thereof. They shall elect one of their number as chair- 
man, who shall hold such position as long as may be prescribed by 
the rules of said board. The city clerk shall act as clerk of the de- 
partment of public safety, and shall record all of their proceedings in 
a book to be provided for that purpose, and copy all accounts and rec- 
ords of every kind pertaining to said department. They shall only 
act as a board, and no member thereof shall have the power to bind 
said board, or said city, except pursuant to a resolution of such board 
authorizing him to act in that behalf as its authorized agent. Said com- 
missioners shall have the care and charge of all property of every kind 
pertaining to the fire and police force and to the market places, pounds 
and prisons of such city. [As amended, Acts 1895, p. 258. In force 
March 11, 1895.] Burns' Supp. 1897, § 3997. 

634. Superintendent of police and other officers — Pay — Control of 
police — Fire districts. — 94. Said commissioners shall appoint a su- 
perintendent of police, chief of the fire force and all other officers, 
members and employes of said fire and police forces, together with a 
market master, station-house keeper, and other officials necessary for 
such department of public safety. The annual pay of such appointees 
shall be fixed by ordinance of the common council, and it shall be 
lawful in such ordinance to grade the members of such forces and to 
regulate their pay not only by rank, but by their length of service. 
In default of any ordinance fixing the compensation for any members 
of such fire or police force, said commissioners shall have power to 
fix the same, subject to change by ordinance by said council. Said 
commissioners of public safety may also fix the number of members of 
said fire and police force, and the number of appointees for other 
purposes. Said commissioners of public safety shall, in like manner, 
divide such city into police precincts and fire districts. Said commis- 
sioners shall also have power to make and promulgate rules and regu- 
lations for the appointment of members of such forces and for their 
government: Provided, That said forces shall be as nearly as possible 
equally divided politically, and no member thereof shall be dismissed 
except for cause, as hereinbefore provided. The superintendent of 
police shall have exclusive direction and control of the police force, 
and the chief of the fire force shall have exclusive control and charge 
of such fire force, subject to the rules, regulations and orders of said 
department of public safety. In times of peril, danger, riot, extensive 
conflagration, disorder, or the apprehension thereof, said chief of the 
fire force and the superintendent of the police force shall, for the time 
being, be subordinate to the mayor and obe}^ his orders and directions, 
anything to the contrary in this act, or in the ordinance of such city, 
or in the regulations or orders of such commissioners of public safety 

CiT. AND To.— 33 



§ 635 CITIES OF MORE THAN FIFTY THOUSAND. 514 

to the contrary notwithstanding. The superintendent of the police 
force and the chief of the fire force shall be of opposite politics. [As 
amended, Acts 1895, p. 258. In force March 11, 1895.] Burns' 
Supp 1897, § 3998. 

635. Members of fire aud police force. — 95. Every member of the 
fire and police force, and all other appointees of the commissioners of 
the public safety, shall hold office until they are removed by the board. 
They may be removed for any cause other than politics, and the writ- 
ten reasons for such removal shall be entered upon the records of such 
board. R. S. 1894, § 3999. 

636. Removal of firemen aud policemen. — 96. On the conviction 
of a member of the said fire or police force for any criminal offense or 
neglect of duty, or of violation of rules, or neglect or disobedience of 
orders, or incapacity, or absence without leave, or conduct injurious to 
the public peace or w^elfare, or immoral conduct, or conduct unbe- 
coming an officer, or other breach of discipline, said commissioners 
shall have pow-er to punish the offending party by reprimand, forfeit- 
ure, suspension without pay, dismissal, or by reducing him to a lower 
grade and pay. E. S. 1894, § 4000. 

637. Powers of policemen. — 97. The officers and members of such 
police force shall possess all the common law and statutory powers of 
constables, except in relation to the service of civil process, an'd any 
warrant of search or arrest, issued b}'^ any judge, or magistrate, or 
justice of the peace of this state, may be executed in any part thereof 
by any member of said police force, subject to the laws of this state 
governing arrests and bail. The members of said police force shall 
have the exclusive power, and it shall be their duty to serve all proc- 
ess within such city issuing from the police force [court] . They shall be 
conservators of the peace in such city, and shall arrest without process 
all persons w^ho wdthin view commit an}^ crime or misdemeanor con- 
trary to the statutes of this state, or ordinances of such city, take them 
before the police court or judge of such city, or other officers having 
jurisdiction of the offense with which such person is charged, and re- 
tain them in custody until the cause of such arrest has been investi- 
gated, suppress all breaches of the peace within their knowledge, and 
authority is hereby given them to call to their aid the powder of such 
city; to pursue and commit to jail all felons and persons guilty of mis- 
demeanors or crimes in violation of the statutes of this state or of the 
ordinances of such city. They shall have the exclusive power, and it 
shall be their duty to serve all process issued by the common council, 
or any committee thereof pursuant to this act, or by any of the execu- 
tive departments of such city. They shall attend upon the police 
court and assist the bailiff to preserve order in such court. R. S. 1894, 
§ 4001. 

For powers and duties of city marshal, police officers, constables, etc., under the gen- 
eral law of 1867, see a7ite, § 95 and notes. 

638. Policemen to convey prisoners. — 98. The members of the 
police force, under the direction of the superintendent thereof, shall 



515 EXECUTIVE OFFICERS AND DEPARTMENTS. § 639 

convey prisoners to and from the county jail or station-bouses of 
such city for the arraignment or trial in the police court, or to the house 
of correction, work-house, reform school, county jail or other place 
of punishment or imprisonment, under judgment, sentence, order, 
process of such court. R. S. 1894, § 4002. 

639. Detail of police — Special policemen. — 99. Said commission- 
ers shall have power, on application of any person or corporation, if 
deemed expedient, to detail regular patrolmen of the police or fire 
force, or appoint and swear any additional number of special police- 
men or firemen to do special duty at any place within such city, upon 
such person or corporation pajdng for the use of such city the same 
rate per diem of service on such detail or special duty as is paid to 
the regular members of the force. Such special patrolmen shall be 
subject to the superintendent and such special firemen to the chief of 
the fire force. They shall obey the rules and regulations of their re- 
spective departments, conform to its discipline and orders, and wear 
such dress or badge as the commissioners may direct, and shall, dur- 
ing the term of their appointment, possess all the powers, privileges 
and duties of regular patrolmen or firemen. Such persons so appointed 
may be removed at any time by said commissioners without notice and 
without assigning any cause. Said commissioners may, also, upon 
emergency or apprehension of riot, tumult, mob or insurrection, pesti- 
lence or invasion, appoint as many special patrolmen as may be de- 
sirable, to be paid the same rate per day and possess the same powers, 
privileges and duties as members of the regular force, and be sub- 
ject to the same ordinances, regulations and orders. Such patrol- 
men and firemen shall wear badges, furnished by their respective de- 
partments. Such commissioners may also detail members from the 
regular forces for the use of the department of health, or any depart- 
ment of the city government. R. S. 1894, § 4003. 

640. Powers of cominissioners and superintendents. — 100. Said 
commissioners and superintendents of fire and police are authorized 
to administer oaths to any person summoned in any proceeding auth- 
orized by this act, or to take any depositions under the rules, regula- 
tions, or orders of said department of public safety. R. S. 1894, 
§ 4004. 

641. Duty of police force — Powers.™ 101. It is hereby made the 
duty of said police force, at all times within such city, and the members 
thereof are specially empowered to preserve peace, prevent crime, de- 
tect and arrest offenders, suppress riots, mobs and insurrections, dis- 
perse unlawful and dangerous assemblages, and assemblages which 
obstruct the free passage of public streets, sidewalks, parks and places, 
protect the right of persons and property, guard the public health, 
preserve order at elections and public meetings, direct the movement 
of teams and vehicles in streets, alleys or public places, remove all 
nuisances in public streets, parks or highways, arrest all street beg- 
gars, provide proper police assistance at fires, assist, advise and protect 
strangers and travelers in public streets or at railroad stations, carefully 



§ 642 CITIES OF MORE THAN FIFTY TPIOUSAND. 516 

observe and inspect all places of business under license, or required 
to have the same, all houses of ill-fame or prostitution, and houses 
where common prostitutes resort or reside, all lottery or policy shops, 
all gambling houses, cock pits, dance houses, resorts, and to suppress 
and restrain all unlawful or disorderly conduct or practices, enforce and 
prevent the violation of all ordinances and laws in force in such 
city. The superintendent of police and each captain in his precinct 
shall possess the power of supervision and inspection over all pawn- 
brokers, venders, junk shop keepers, cartmen, expressmen, dealers in 
second-hand merchandise, intelligence offices and auctions, and any 
member of such force may be authorized by the superintendent to ex- 
ercise the sam.e powers, by authority in writing. Said superintendent 
or any captain may, by written authority, when in search of stolen 
property, of evidence, or of suspected offenders, to examine the books, 
business, or premises of any of the persons named in this section, and 
to examine property in whosesoever possession the same shall be. 
R. S. 1894, § 4005. 

642. Gamiiig houses. — 102. If any member of such force, or if any 
two or more householders in such city, shall report in writing, under his 
or their signature, to the superintendent of police, that there is good 
grounds (and stating the same) for believing that any house, room or 
premises within such city is kept or used as a common gaming-house, 
room or premises for therein playing for wagers of money at any game 
of chance, or to be kept for lewd or obscene purposes of amusement, 
or for the deposit or sale of lottery tickets or policies, it shall be law- 
ful for said superintendent to authorize any member or members of 
said police force, in writing, to enter the same, who shall forthwith 
arrest all persons there found offending against law, and seize all in- 
struments of gaming, or lottery tickets, and deliver the same to the 
superintendent, who shall destroy them. E. S. 1894, § 4006. 

643. Duty on inaking' arrest.— 103. Whenever any arrest has 
been made by any member of such police force, it shall be the duty 
of the officer in making the arrest to forthwith bring the person 
arrested before the police court, or court having jurisdiction thereof, 
to be dealt with according to law. If the arrest is made during the 
hours when such court is not in session, or if the judge is not holding 
court, such offender shall be detained in the city prison until there 
shall be an opportunity for such hearing at the earliest practicable 
time, or until he shall have given bond for his appearance. And no 
person shall be detained longer than twenty-four hours without such 
examination, except where Sunday intervenes, in which case no per- 
son shall be detained longer than forty-eight hours. Any person or 
corporation who shall interfere with said commissioners of public 
safety, or their appointees in the legal discharge of their duties, shall, 
upon conviction, be fined not more than one thousand dollars ($1,000), 
to which may be added imprisonment for not more than ninetv (90) 
days. R. S. 1894, § 4007. 

644. Not to interfere in politics,— 104. It shall be unlawful for 



517 EXECUTIVE OFFICERS AND DEPARTMENTS. , § 645 

said commissioners of public safety, or any persons appointed by them 
or their predecessors, or holding any position on said fire or police 
force, to solicit any person to vote at any election for any candidate, 
or to challenge any voter, or in any manner attempt to influence any 
elector at such election, or to be a delegate or candidate for delegate 
to any political convention, or to solicit for any candidate for, or dele- 
gate to such convention, or to be a member of any political com- 
mitteeo Any person violating the provisions of this section shall be 
fined in any sum not exceeding five hundred dollars, to which may be 
added imprisonment for a period not exceeding six months. R. S. 
1894, § 4008. 

645. Boiids of appointees. — 105. Said commissioners shall have 
power, subject, however, to city ordinances, to adopt rules regulating 
the giving of bond by any appointees or class of appointees in such de- 
partment for faithful performance of official duty. R. S. 1894, § 4009. 

646. lusurauce fund. — 106. Said commissioners may at any time 
draft an ordinance and submit the same to the common council, who 
shall have power to enact the same like other ordinances, for the cre- 
ation, management and distribution of a police insurance fund, or of 
a firemen's insurance fund, together with a provision for retaining a 
per cent, of each appointee's salary, for the creation of such fund, and 
prescribing the conditions of its investment and who shall be entitled 
to the benefits thereof. R. S. 1894, § 4010. 

See post, §§1476, et seq., and 1493, et seq. 

E. DEPARTMENT OF COLLECTION. 

647. City treasurer— Appointment — Salary — Oath— "Bond.™107. 

The city treasurer shall be at the head of the department of collection, 
he shall be appointed by the mayor and may be removed by the mayor. 
His salary shall be at the rate of two thousand dollars ($2,000) per 
year. It shall be his duty to receive and disburse all money and 
revenues belonging to such city, or received and collected by virtue of 
this act, or by virtue of the ordinance made in pursuance of it. He 
shall keep accurate accounts in such manner as shall be directed by 
the common council of all moneys by him received and disbursed, and 
perform such other services as may be required of him by ordinances 
not inconsistent with this act. Before entering upon his duties every 
such treasurer shall take an oath of office, and give a bond payable to 
such city, with freehold security to the satisfaction of the common 
council, in a penalty to be prescribed by it, and not less than the esti- 
mated amount of all taxes, including delinquent, to be levied and col- 
lected for municipal purposes in such city for the current year, condi- 
tioned for the faithful performance of his duties as such treasurer, 
and the faithful keeping and paying over and accounting for all money 
and propertv that may come into his hands as such treasurer. R. S. 
1894, § 40li. 

See ante, §490, and post, §§1412, 1414 and notee. For treasnrer's duties under the 
general law of 1867, see ante, §§97-103, jUKst, § lOUO, and notes. 



§ 648 CITIES OF MORE THAN FIFTY THOUSAND. 518 

648. Account of moneys — Reports «— 108. The treasurer shall keep 
an account of all moneys received by him and shall report to the comp- 
troller for all amounts received or collected by him belonging to such 
city, which amounts shall at once be available for the city use. R. S. 
1894, § 4012. 

64:9. Salary and fees for treasurer — Deputy. — 109. Said treasurer 
shall, in addition to his annual salary of two thousand dollars ($2,000) 
receive three (3) per centum for the collection of delinquent taxes. 
Sacti treasurer may appoint a deputy who shall receive a salary at the 
rate not exceeding one thousand dollars ($1,000) per year. [As 
amended, Acts 1895, p. 258. In force March 11, 1895.] Burns' 
Supp. 1897, § 4013. 

650. Keceiving unlawful compensation — Penalty. — 110. Any treas- 
urer or deputy treasurer who shall directly or indirectly ask or receive 
any compensation from such city other than that expressly allowed by 
this act, or who shall fail to account for and pay over to such city all 
interest, compensation or reward received b}^ him directly or indirectly 
for the use, loan or deposit of any money belonging to such city, shall 
be liable to be fined in any sum not exceeding five thousand dollars 
($5,000), to which maybe added imprisonment not exceeding one 
year. Any councilman of such city who shall propose any appropria- 
tion for such treasurer or deputy or either of them, shall be subject to 
the same penalty previously mentioned in this section. R. S. 1894, 
§ 4014. 

F. DEPARTMENT OF HEALTH AND CHARITIES. 

651. Board of health and charities — Appointment — Salary — Du- 
ties. — 111. The department of health and charities shall be under the 
control of three commissioners, who shall be practicing physicians, not 
more than two of whom shall be of the same political party^ to be ap- 
pointed by the mayor as hereinbefore provided. Said commissioners 
shall each receive a salary of one hundred dollars ($100) per year. 
Said commissioners shall have charge of all matters relating to public 
health and the enforcement of laws in relation thereto; shall have 
charge of the city hospital, city dispensary and all other city charities. 
They shall keep a record of their proceedings. Said commissioners 
shall appoint a superintendent of the city hospital and city dispensary, 
who shall have control and management thereof. Said commission- 
ers shall elect one of their number registrar of vital statistics, who 
shall be secretary and executive officer of their board, and shall attend 
to the proper registration of births, marriages and deaths, and such 
other statistical information as the department may require. Said reg- 
istrar of vital statistics shall receive for his services the sum of three 
hundred dollars in addition to his salary as health commissioner. Said 
health commissioners shall nominate for appointment by the depart- 
ment of public safety, as special sanitary officers, skilled and compe- 
tent persons for live stock and meat inspectors and food inspectors, 



519 POLICE COURT. § 652 

whose duty it shall be to inspect all live stock, meat and food offered 
for sale for human food in such city, and to attend the public markets 
and carefully watch over the same and prevent the selling, or offering 
to sell, for human food, any and all articles unfit for use, and said com- 
missioners is [are] hereby authorized to require from the department 
of public safety special detail of policemen or firemen to execute orders 
of such department of public health whenever needed. Said depart- 
ment of public safety shall detail policemen who shall be constantly 
subject to the orders of such department of health. In case of disa- 
greement as to the number or duration of service of such details of 
firemen and policemen, between said two departments, the mayor 
shall decide the question. R. S. 1894, § 4015. 

652. To prepare ordinances. — 112. Said health commissioners 
are hereby authorized and directed to prepare ordinances for the pro- 
tection of public health, for securing the proper registration of 
births, marriages and deaths, and such other statistical information 
as the department may require, with penalties for their violation; for 
the removal and burial of the dead, the maintenance of an ambulance 
services for the speedy removal of the sick and needy persons, for the 
efficient regulation and management of the city hospital and city dis- 
pensary as may seem to them desirable, and the destruction or the fumi- 
gation of infected property or premises, for the registration of plumb- 
ers and the inspection of plumbing and house drainage in all buildings, 
both public and private, erected after the passage of this act, and in 
all buildings, both public and private, erected prior thereto wherein 
changes in or additions to the plumbing or drainage are to be made, for 
the appointment of an inspector of plumbing and house drainage, who 
shall be a practical plumber, who shall be required to pass an exami- 
nation as to his qualifications by a board of three practical plumbers 
doing business and residing in such city, said board to be selected by 
the health commissioners of such city. Such ordinances shall be sub- 
mitted to the council for passage as other ordinances. R. S. 1894, 
§ 4016. 

ARTICLE 4.— POLICE COURT. 

Officers not to receive fees. 

Salary of police judge. 

Clerk of court — Bond — Duties. 

Bailiff of court — Bond — Duties. 

Salary of bailiff. 

Prosecuting attorney — Duties . 

Witness fees. 

Warrants — Service . 

Arrest — Duty of policemen. 

Duty of mayor until act takes effect. 



JUDICIAL. 

653, Police court — Officers. — 113. The judicial power of such city 
shall be vested in a police court. The officers thereof shall be one judge, 



SEC. 




SEC. 


653. 


Police court— Officers. 


661. 


654. 


Seal of court — Change of venue. 


662. 


655. 


Police judge— Appointment —Re- 


663. 




moval — Term— Bond— Sessions — 


664. 




Jurisdiction. 


665. 


656. 


Jurisdiction of police courts— Punish- 


666. 




ment— Appeals . 


667. 


657. 


Rules— Oaths— Appeals. 


66S. 


658. 


Judge pro tern.— Docket fee. 


669. 


659. 


Failure to pay fine — Imprisonment. 


670. 


660. 


Vacancy in office of police judge. 





§ 654 CITIES OF MORE THAN FIFTY THOUSAND. 520 

a clerk, and a bailiff. The style of such court shall be: ''The police 

court of the city of /' according to the name of such city. Said 

court shall be a court of record, and all its judgments, decrees, orders 
and proceedings shall have the same force and effect as those of the 
criminal or circuit courts, except that no judgment shall be a lien on 
the real estate otherwise than is provided by taking transcript, and 
the same shall be enforced in the same manner as liens by transcripts 
from justices of the peace in similar cases. R. S. 1894, § 4017. 

654. Seal of court — Change of veiiue, — 114. The police judge shall 
provide, at the expense of the city, a seal for such court, which shall 

contain on the face the w^ords: ''The police court of , Indiana," 

the blank to be filled with the name of the city. A description of such 
seals, together with an impress thereof, shall be spread on the records 
of such court. No change of venue shall be taken from such court, 
but any defendant may take a change of venue from the judge thereof 
as is now provided by law relating to criminal and circuit courts. 
R. S. 1894, § 4018. 

655. Police judge — Appointment — Removal — Term — Bond — Ses- 
sions — Jurisdiction. — 115. The police judge shall be appointed by the 
mayor of such city. He shall be an attorney at law of good standing and 
reputation. He may be removed by the ma3^or, and his removal shall 
take effect upon the appointment and qualification of his successor. 
Before entering upon the discharge of his duties, he shall execute a 
bond, payable to such city, in the penal sum of five thousand dollars 
($5,000), with good and sufficient freehold security, to be approved by 
the mayor and filed in the office of the city comptroller, conditioned 
for the faithful and honest discharge of the duties of his office. He 
shall hold daily sessions of the police court, Sundays excepted, at a 
place within such city, provided and designated by the common coun- 
cil. He shall have and exercise within such county in which such 
city is located the powers and jurisdiction now or hereafter conferred 
upon justices of the peace in all felonies, crimes and misdemeanors, 
except as other v»ase herein provided. He shall have and exercise 
within such city, the powers and jurisdiction now conferred on mayors, 
except as otherwise herein provided. He shall have exclusive juris- 
diction of all violations hj the ordinances of such city. He shall also 
have such further and additional jurisdiction as is in the next section 
provided. [As amended, Acts 1895, p. 258. In force March 11, 1895.] 
Burns' Supp. 1897, § 4019. 

656. Juiisdiction of police courts — Punishment — Appeals. — The 
police court of said city shall have original concurrent jurisdiction 
with the circuit courts of the state in all cases of petit larceny and in 
all other cases of felonies and misdemeanors where the punishment 
fixed by law can not exceed a fine of one thousand dollars ($1,000) 
and imprisonment in the state prison not more than three years. 

On the trial of any person in said court for the violation of any law 
of this state, the judge or jury trying the case shall, upon conviction, 
have the power to assess a fine not exceeding one thousand dollars 



521 POLICE COURT. § 657 

($1,000), with imprisonment in the state prison not exceeding three 
years, and disfranchisement for any determinate period, or to assess a 
fine not exceeding one thousand dollars ($1,000), to which may be 
added imprisonment in the county jail, work-house, or other lawfully 
designated place of confinement, for a term not exceeding one year, 
with disfranchisement as above provided. 

Appeals may be taken from the judgment of this court, to the cir- 
cuit court of the county within ten (10) days from the rendition 
thereof, upon filing a bond as required by law. [As amended, Acts 
1895, p. 258. In force March 11, 1895.] Burns' Supp. 1897, § 4020. 

See notes, ante, § 524. 

657, Eiiles — Oatks — Appeals. — 117. Such judge shall have full 
power and authority to make and adopt rules and regulations for con- 
ducting the business of said court not repugnant to the laws of this 
state, and shall have all powers incident to the court of record in re- 
lation to the attendance of witnesses, the punishment of contempts, 
and enforcement of its orders, and to issue commissions for taking 
depositions in cases pending in said court. He shall have full au- 
thority to administer oaths and to give all necessary certificates for the 
authentication of the records and proceedings of said court in the mat- 
ter of changes of venue, and in the trial of any person charged with 
the violation of any law of this state. Such court shall be governed, 
as far as may be, by the law, rules, practices and pleadings relating 
to criminal courts, except where herein otherwise provided, and in 
the trial of any person charged with the violation of any ordinance of 
such city, such court shall be governed, as far as may be, by the laws, 
rules, practice and pleadings now in force relating to mayors' courts, 
except where herein other vv^ise provided. Appeals shall be from the 
judgment of said court in criminal cases to the criminal circuit court 
and in civil cases to the superior or circuit courts in the same manner 
that is now provided for the appeals from the mayor's court. R. S. 
1894, § 4021. 

658. Judge protein. — Docket fee,- — 118. In case of the temporary 
absence or inability of the police judge to act, he shall appoint any 
reputable practicing attorney to preside in his absence, and such 
judge pro tern, shall have and possess all the powers and rights, and 
perform and exercise all of the duties of judge of such court as fully 
and completely as the police judge appointing him. It shall be the 
duty of such judge to tax, for the use and benefit of such city, a 
docket fee of five dollars ($5) in each case where a defendant is ad- 
judged guilty of a violation of any law of this state or ordinance of 
such city, which docket fee shall be collectible in the same manner as 
other costs are collected; and no other fees whatever shall be taxed 
against a defendant except as herein provided for: Provided, hoivcver, 
That nothing herein shall prevent the taxing and collection of the 
penalties and fees now provided by law in case of the collection of 
judgments on execution, levy and sale of personal property, but such 



§ G59 CITIES OF MOKE THAN FIFTY THOUSAND. 522 

penalties and fees when collected shall be for the use and benefit of 
such city. R. S. 1894, § 4022. 

659. Failure to pay fine — Imprisonment. — 119. Any person hav- 
ing been adjudged guilty of a violation of an ordinance of said city 
and committed therefor may be discharged by such court or judge 
after said defendant has been imprisoned, in addition to the term of 
imprisonment, if any, adjudged against him as a part of the sentence, 
one day for every dollar of such fine and cost, if it appear to such 
court or judge that such defendant is unable to pay or replevy such 
fine and cost, but an execution may issue against the property of the 
defendant, as in the case of other judgments. In no such case, how- 
ever, shall the city be liable to any person for costs or fees. R. S. 
1894, § 4023. 

660. Tacancy in oliice of police judge. — 120. In the case of a 
vacancy in the office of police judge, the mayor shall appoint a suc- 
cessor, who shall hold such office during the unexpired term of his 
predecessor. R. S. 1894, § 4024. 

661. ^ Officers not to receive fees. — 121. The police judge, clerk of 
the police court, or the bailiff thereof, shall not receive any fee, or 
other compensation whatever than their respective salaries. R. S. 
1894, § 4025. 

662. Salary of police judge. — 122. The salary of the police judge 
shall be at the rate of one thousand five hundred dollars ($1,500) per 
vear, payable monthly, as the salaries of other city officers are paid. 
IAs amended, Acts 1895, p. 258. In force March 11, 1895.] Burns' 
Supp. 1897, § 4026. 

663. Clerk of court— Bond— Duties.— 123. The city clerk shailbe 
the clerk of the police court. Before entering upon the discharge of 
his duties he shall execute a bond payable to such city in the penal 
sum of five thousand dollars ($5,000), with good and sufficient resi- 
dent freehold sureties, subject to the approval of the mayor, which 
bond shall be filed with the city comptroller. Such clerk shall have 
full power to administer oaths; he shall issue all process of said court, 
affix the seal of the court thereto, and attest the same. He shall keep 
a true, correct and complete record and docket of all cases and persons 
arrested and brought before the said court, how tried and disposed of, 
and of the fees, fines, penalties, forfeitures, judgments, executions, 
decrees and orders had therein, in the same manner, as nearly as may 
be, as such records are kept by the clerks of the criminal courts. He 
shall collect, prosecute and receive payment of all such fees, fines, pen- 
alties and forfeitures, and all judgments and executions and all mon- 
eys whatever accruing or to be paid in for the use of said city from 
the enforcement of any of the laws thereof. At the close of each day's 
session of such court, he shall make out and deliver to the police judge 
a written report of all cases in which he has received or collected any 
moneys during said day, and shall forthwith pay over all such moneys 
to said judge, and take his receipt therefor. R. S. 1894, § 4027. 

664. Bailiff of court— Bond— Duties.— 124. The bailiff of such 



523 POLICE COURT. § 665 

police court shall have the powers of a constable, and shall be a police 
Oiiicer of such city, designated and assigned to such court by the super- 
intendent of police of such city. He shall give bond, payable to such 
city, in the penal sum of one thousand dollars ($1,000), with suffi- 
cient freehold surety, to be approved by the mayor, conditioned upon 
the faithful and honest discharge of his duties, which bond shall be 
filed in the office of the comptroller. It shall be his duty to be pres- 
ent at the sessions of such court, maintain order therein, and perform 
all other ordinary court duties, subject to the order of the court. He 
shall have and exercise the powers and duties of a constable, as now 
prescribed bylaw, except as herein otherwise provided. He shall take 
charge of all executions issued by the police court, and shall see to 
the collection of the same. He shall keep, in books to be furnished 
him by the comptroller, a full and accurate account and docket of all 
executions which may come into his hands, showing the names of the 
defendants, date and number of the execution, amount of fines, fees 
or penalties imposed, and the disposition of such execution. He shall 
make out and deliver a written report to the clerk of the police court, 
every Tuesday of each week, of all moneys collected by him during 
the week, giving the names of the defendants, number of executions, 
amount of fines, fees or penalties collected, and forthwith pay such 
moneys to such clerk, taking his receipt therefor. R. S. 1894, § 4028. 

665. Salary of bailiff. — 125 The salary of the bailiff of the police 
court shall be fixed by the police board of such city in any sum not 
exceeding $800 per annum, payable as other salaries of other police 
officers are paid. R. S. 1894, § 4029. 

666. Prosecuting attorney — Duties. — 126. The prosecuting at- 
torney of the judicial circuit in which said city is located shall prose- 
cute all cases in said court for violation of the laws of this state, and 
shall be entitled to receive the same fees therefor as is [are] now pro- 
vided in cases of such prosecutions before the justices of the peace, 
and the city attorney shall prosecute all cases of violation of the or- 
dinances of such city, and he shall be entitled to receive the same 
fees therefor as are allowed such circuit prosecutor. R. S. 1894, § 4030. 

667. Witness fees. — 127. Witness fees in all cases in such police 
court shall be taxed and collectible only when claimed or demanded 
by the witnesses at the time of the trial. And no witness shall be 
allowed more than one fee for any one day's attendance, nor shall any 
witness fee be taxed in any case in favor of any member of the police 
force of such city. All witness fees when collected and received by 
the police judge shall be paid by him to such witness upon his demand 
and his receipting upon the proper docket for such fee, and if not 
claimed in six months, said fee shall be turned into the treasury. R. 
S. 1894, § 4031. 

668. Warrants — Service.- — 128. All warrants or other process 
issued by the police court shall be directed to the superintendent of 
police or any member of the police force of such city, which shall 
be executed, served and returned. R. S. 1894, § 4032. 



§ 669 CITIES OF MORE THAN FIFTY THOUSAND. 524 

669. Arrest — Duty of policemen. — 129. It shall be the duty of 
the members of the police force of such city to cause all persons ar- 
rested by them for a violation of any ordinance of such city, or any 
law of the state, to be taken before such police court for trial or exam- 
ination as the case may be. R. S. 1894, § 4033. 

670. Duty of mayor until act takes effect. — 130. From the taking 
effect of this act until Monday, April 3, 1893, the mayor of the city 
shall act as police judge and perform all the duties thereof, as re- 
quired by this act. In case of the mayor's inability to be present and 
hold said court, he may in writing appoint any reputable attorney of 
said city judge pro tern, to hold the same, who, before entering upon 
the discharge of such dut}^, shall take an oath to faithfully serve as 
such judge pro tern. Such judge pro tern, shall receive a salary at a 
rate of six dollars and fifty cents ($6.50) per day, to be paid as the 
salary of other officers is paid, upon the certificate of the mayor that 
the services have been rendered. The mayor may revoke such ap- 
pointment at any time. R. S. 1894, § 4034. 

ARTICLE 5.— DEPARTMENT OF WATER-WORKS. 

Investigation of books and papers. 
No charge for water for fires. 
Attachments to pipes. 
Notice of letting work. ^ 

Bond of contractor — Trustees not to 

be interested. 
Tax to pay for water- works. 
Lien of taxes. 
Jurisdiction beyond city limits. 

G. DEPARTMENT OF WATER- WORKS. 

671. Water-works trustees — Appoiutment — Salary — Bond. — 131. 

The department of water-works shall have for its head a board of 
three trustees, to be appointed, as hereinbefore provided, by the mayor, 
not more than two of whom shall be of the same political party. The 
mayor shall have the power to remove at any time, any member of 
said board, and to fill, by appointment, any vacancy occurring in said 
board. Each member of said board shall receive a salary at the rate 
of five hundred dollars ($500) per year, which may be increased by 
ordinance of the common council to any sum not exceeding seven 
hundred dollars ($700) per year. Each of said trustees shall, before 
entering upon the duties of his office, give bond in the sum of five 
thousand dollars ($5,000), to be approved by the city comptroller; 
said bond shall be for the faithful performance of their duties and 
strict accounting for all funds that shall come into their hands. The 
said trustees shall manage, conduct and control the water-w^orks of 
such city, furnish a supply of w^ater, collect water rents, appoint all 
necessary officers and agents, determine the amount of salaries of the 



SEC. 




SEC. 


671. 


Water- works trustees —Appointment 


678. 




—Salary— Bond. 


679. 


672. 


By-laws. 


680. 


673. 


Water rents. 


681. 


674. 


Surplus rents. 


682. 


675. 


Eeports by trustees — Deposit of 






money. 


683. 


676. 


Moneys kept separate—Orders. 


684. 


677. 


Contracts for works and buildings. 


685. 



525 DEPARTMENT OF WATER- WORKS. § 672 

officers and agents, and remove any of said appointees at any time. 
Tlie regular employes and appointees of said department shall be 
taken, as nearly as ma}^ be, equally from the two leading political par- 
ties. [As amended, Acts 1895, p. 258. In force March 11, 1895.] 
Burns' Supp. 1897, § 4035. 

672. By-laws. — 132. Said trustees shall be authorized to make 
such by-laws and regulations as they deem necessary for the safe, 
economical and efficient management and protection of the water- 
works, and such by-laws and regulations shall have the same validity 
as ordinances, when not repugnant thereto, or to the constitution and 
laws of the state. R. S. 1894, § 4036. 

673. Water rents. — 133. For the purpose of paying the expenses 
of managing and operating the water-works, the trustees of the water- 
works shall have power to assess and collect, from time to time, a 
water rent of sufficient amount, and in such manner as they may 
deem most equitable upon all tenements and premises supplied with 
water, and from manufacturing establishments and railroad shops, 
and for the supply of boilers, locomotive engines, and for all other 
purposes tending to increase the income of the works. R. S. 1894, 
§ 4037. 

674. Surplus rents. — 134. Should there be any surplus money 
after paying the expenses of operating the water-works, the same may 
be applied to the repair, enlargement or extension of the works, or of 
the reservoirs, the payment of the interest of any loan made for their 
construction, or for the creation of a sinking fund for the liquidation 
of the debt. R. S. 1894, § 4038. 

675. Reports by trustees — Deposit of money. — 135. The trustees 
of the water-works shall make monthly reports to the common council 
and city comptroller of the receipts and disbursements of money be- 
longing to the water-works, and an annual report of the condition of 
the same, and all money collected for water-works purposes, they shall 
cause to be deposited weekly with the treasurer of the city, and the re- 
ceipt therefor shall be by such collectors deposited with said trustees, 
or their authorized agent. R. S. 1894, § 4039. 

676. Moneys kept separate—Orders. — 136. All moneys so depos- 
ited shall be kept a separate and distinct fund, subject to the order of 
said trustees ; and all orders drawn by said trustees on the treasurer 
of the city or town shall be signed by at least two of the trustees and 
countersigned by the clerk of tlie water-works. R. S. 1894, § 4040. 

677. Contracts for works and buildings. — 137. Said trustees shall 
be authorized to make contracts for the erection of water-works build- 
ings and construction of setting basins and other appendages, and the 
enlargement and repairs thereof; for the purchase of machinery, and 
the manufacture and laying down of pipe; for the furnishing and sup- 
plying with connections of all necessary fire hydrants for fire depart- 
ment purposes, and for keeping the same in repair, and for all other 
purposes necessary to the full and efficient management and construe- 



§ 678 CITIES OF MORE THAN FIFTY THOUSAND. 526 

tion of the water-works, and such contracts as shall be subject to the 
ratification by [of] the common council. R. S. 1894, § 4G41 

678. Inyestigation of books and papers.— 138. The common coun- 
cil of such city in which water-works are or may be situated, or in 
process of construction, shall be authorized to appoint a committee of 
investigation of all books and papers, together with all matters per- 
taining to the management of the water-works, at least once a year, 
and oftener, if necessary by reason of any neglect of duty or malfeas- 
ance on the part of any officer of the works; and any officer of the 
works found by said committee so offending shall be liable to removal 
from office. R. S. 1894, § 4042. 

679. No charge for water for fires. — 139. No change [charge] 
shall be made by the trustees of the Avater-works for supplying water 
for the extinguishment of fires, or for furnishing and supplying con- 
nections for fire department purposes, or for the cleansing of market 
houses, or for the use of any public buildings belonging to such city^ 
or for flushing out sewers, or other sanitary purposes. R. S. 1894, 
§ 4043. 

680. Attacliments to pipes.— 140. All attachments of whatever 
nature made to the water pipes or other fixtures belonging to the 
water-works and intended for public use, shall be subject to the same 
supervision, rules and regulations as are made for the protection of 
such water-works against the abuse, destruction and inordinate or un- 
necessary use or waste of water; or the trustees may make general or 
special rules and regulations for such purposes. R. S. 1894, § 4044. 

681. Notice of letting work. — 141. Said trustees, before entering 
into any contract for work to be done, shall cause two weeks' notice to 
be given in one or more dail}^ newspapers of general circulation within 
the city that proposals will be received by the trustees for performing 
the work, or the several parts of the same, specified in said notice; 
and the trustees shall contract with the lowest bidder, if, in their 
opinion, said lowest bidder can be depended on to do the work with 
ability, promptness and fidelity, which contract shall be subject to 
ratification of the common council, as heretofore provided; but if 
such be not the case, said trustees may give the contract to the next 
lowest bidder, or decline to contract, and re-advertise; or if no daily 
newspaper be published in such city, then such notice shall be pub- 
lished three weeks consecutively in a weekly newspaper of general 
circulation within such city. R. S 1894, § 4045. 

682. Bond of contractor — Trustees not to be interested. — 142. 
Said trustees shall require bonds to be given with good and sufficient 
security for the faithful performance of the work; but no member of 
said board of trustees shall in anywise, either directly or indirectly, be 
interested in any such work to be contracted for. Such bond shall be 
submitted to the common council for approval. R. S. 1894, § 4046. 

683. Tax to pay for water works. — 143. For the purpose of pay- 
ing the principal and interest on the money borrowed for the erection 
and completion of any water-works, or for the extension and improve- 



527 SCHOOL TRUSTEES TAXATION WHARFxMASTER. § G84 

meiit of such works, or for the purpose of rebuilding or repairing such 
water- works, a tax of sufficient amount shall be assessed on all the 
taxable property of the city, and collected each and every year in the 
usual manner of levying and collecting taxes in the city: Provided, 
The additional special tax hereby authorized shall not, in any year, 
exceed fifty cents on each one hundred dollars of taxable property, and 
one dollar'^on each poll. R. S. 1894, § 4047. 

684:. Lieu of taxes. — 144. The said tax, when levied and assessed, 
shall be a lien upon the property upon v/hich it is levied, and charged 
against the owners thereof, and shall be placed on the city duplicate 
in a separate column thereof, and be collected as other taxes. R. S. 
1894, § 4048. 

685. Jurisdiction beyond city limits. — 145. The jurisdiction of 
any such city owning water- works, shall extend, for the purposes of 
preventing and punishing any pollution of the water, ten miles be- 
yond the corporation limits: Provided, If any person owning a water- 
power or mill property within the limits herein prescribed, in the use 
or management of which any stream is polluted to such an extent that 
the water thereof is thereby rendered unfit for the use of such city 
purposes, such property or water-power may be condemned for the 
benefit of such city, but before the same is done such mill property 
shall be appraised by three disinterested freeholders of the county in 
which said property is situated, one of whom shall be selected by such 
trustees, one by the owner of such property, which two shall select a 
third Said appraisers shall appraise such property at its fair cash 
value, and upon the tender of the same by the city, and refusal by the 
mill-owner to accept the value appraised as aforesaid, such business 
may be enjoined in any court of competent jurisdiction. R. S. 1894, 
§ 4049. 

AETICLE 6.— SCHOOL TRUSTEES-TAXATION— WHARFMASTER. 

SEC. SEC. 

686. School trustees — Appointment — Oath 689. Wharfmaster — Appointment — Bond — 

— Bond — Compensation — Duties. Salary— Duties. 

687. Reports of moneys received. 690. Laws repealed — Evansville charter. 

688. Taxation— Duplicate — When taxes 

are due. 

SCHOOL TRUSTEES. 

686. School trustees — Appointment — Oath — Bond — Compensation 
— Duties. ^ — 146. The mayor of such city shall appoint, as hereinbe- 
fore provided, three school trustees. Not more than two of the mem- 
bers of said board shall be of the same political part}^ Each member 
shall hold his office until he is removed b}" the mayor: Provided, 
That said mayor shall have power to dismiss but one member of said 
board each year, except for neglect of dut}^ or disability. All vacan- 
cies in said office shall be filled by appointment by the mayor. Said 
trustees shall constitute the school board of such city, and before en- 



§ 687 CITIES OF MOKE THAN FIFTY THOUSAND. 528 

tering upon the duties of their office each shall take an oath f aithfully 
to discharge the duties of the same. They shall meet within five days 
after the first member is appointed under this act, and organize by 
electing one of their number president, one secretary, and one treas- 
urer. The treasurer, before entering upon the duties of his office, 
shall execute a bond to the acceptance of the county auditor of the 
county in which said city is situated, conditioned as in ordinary official 
bonds, with at least two sufficient freehold securities, who shall not be 
members of said board, in a sum not less than double the amount of 
money which may come into his hands within any one year by virtue 
of his office. The president and secretary shall each give a like bond 
with like sureties, to be approved by the said county auditor, in any 
sum not less than one-third of the amount of the said treasurer's 
bond. The said board of school trustees shall at the end of one year 
from the date of the first organization under this act, and annually 
thereafter, reorganize their board, and execute their bonds for the en- 
suing year. Said trustees shall receive for their services such com- 
pensation as the common council of such city may, by ordinance pro- 
vide. Said trustees shall perform all of the duties and have all of the 
powers not inconsistent with this act, conferred by the general laws of 
this state upon the city school boards. Upon the request of said 
school board the common council of such city may in its discretion 
appropriate a portion of the general tax collected by such city for the 
support of the common schools within such city. R. S. 1894, § 4050. 

687. Keports of moneys receiyed. — 147. Said school board shall 
make a detailed report to the comptroller of such city on the first 
Monday in July of each year of all moneys received and disbursed by 
it during the year ending on said day. R. S. 1894, § 4051. 

TAXATION. 

688. Taxation — Duplicate — When taxes are due. — 148. The laws 
of the state of Indiana concerning the assessment of property for tax- 
ation and the collection of taxes, the sale of property for delinquent 
taxes, the enforcement of the lien by foreclosure, or other proceed- 
ings, so far as the same are not in conflict with this act, shall apply 
to such city; and for the purpose of enforcing the collection of delin- 
quent taxes and conferring and giving title to property and quiet- 
ing title to property that may have been sold for taxes, and foreclos- 
ing the lien of the city for taxes where property has been offered 
for sale for three successive years for delinquent taxes without bid- 
ders, such city shall have the same powers that the state and 
county have by law for such purposes, and the comptroller and 
treasurer of such city shall perform the same duties respectively in re- 
lation thereto as may now by law be performed by county auditors 
and treasurers, and the city attorney shall perform the same duties 
now required of the prosecuting attorney with reference to the enforce- 
ment of the lien of said city for taxes. It shall be lawful for said city, 



529 SCHOOL TRUSTEES TAXATION WHARFMASTER. § 689 

or the proper department, officer or employes thereof, when specifical- 
ly authorized by ordinance so to do, to purchase for and in the name 
of said city any property that shall be offered for sale for non-payment 
of taxes, and on the purchase of such property such city shall have 
sll the rights that are now or that may hereafter be given to other 
purchasers of property at delinquent tax sales: Provided, That the 
city comptroller shall deliver the city tax duplicate for each year to 
the city treasurer of such city on or before the first day of September 
of each year; that the city taxes shall become due on the first day of 
September of each year, and all of said taxes remaining due and un- 
paid on the first day of December of said year shall become delinquent 
on said day: Provided, further, That the common council may of its 
ovv^i discretion, by ordinance provide for the payment of such city taxes 
in two installments, and may provide the time when such installments 
shall be paid and when the same shall become delinquent. City taxes 
shall be a lien on real estate from and after September first of each 
year. [As amended, Acts 1895, p. 258. In force March 11, 1895.] 
Burns' Supp. 1897, § 4052. 

WHARFMASTER. 

689. Wharfmaster — Appointment — Bond — Salary — Duties. — 149 . 

The mayor shall appoint one wharfmaster, who shall serve until he 
is removed by the mayor; the mayor shall fill all vacancies in said 
office. The wharfmaster shall file a bond in the sum of one thousand 
dollars with surety, to be approved by the mayor; said bond shall be 
conditioned for the faithful discharge of his duties. His salary shall 
be at the rate of six hundred dollars per year. He shall collect all 
wharfage due the city, pay the same into the city treasury at least once 
a week, and make weekly reports of his collections to the comptroller, 
and perform ail duties that may be required of him by ordinance. R. 
S. 1894, § 4053. 

690. Laws repealed — Evansville charter. — 150. All laws and parts 
of laws coming in conflict with this act be and the same are hereby 
repealed, especially an act granting to the citizens of the town of 
Evansville in the county of Vanderburgh, a city charter approved 
January 27, 1847. R. S. 1894, § 4054. 

Note— Extension and amendment of street car franchises, etc.— The act of 1891 

(R. S. 1894, §§ 5477, 5478, 5479), applicable to city of Evansville when passed, prohibit- 
ing extension and amendment of street car or other franchises for use of streets, was, 
perhaps, impliedly repealed by the foregoing act. It has since been expressly repealed. 
See Acts 1899, p. 71. 

CiT. AND To.— 34 



CHAPTER 4. 
CITIES OF MORE THAN THIRTY-FIVE THOUSAND. 

ART. ART. 

1, Incorporation and officers. 3. Executive and judicial officers and 

2. Legislative — Common council. departments. 

4. Water- WORKS trustees. 

ARTICLE 1.— INCORPORATION AND OFFICERS. 

sec. sec. 

691. Cities governed by this act. 695. Notice to officers elected. 

692. Elective officers— Election — Terms. 696. Oaths of officers — Bonds. 

693. Old officers, powers continued. 697. Officers not interested in contracts. 

694. Vacancies. 698. Purchase of claims by officers. 

[Acts 1893, p. 202. In force March 3, 1893.] 

691. Cities governed by this act, — 1. That all cities of this state 
which had a population of more than thirty-five thousand and less than 
forty-nine thousand inhabitants, as shown by the last preceding United 
States census, shall, on and after the first Tuesday in May, 1894, be 
governed by the provisions of this act. Any city falling within the 
scope of this act shall be, and continue to be, the same legal corpora- 
tion as heretofore, subject to the same liabilities heretofore incurred, 
and possessing the same rights which have heretofore accrued. All 
by-laws, ordinances and regulations, not inconsistent with this act, 
shall remain and continue in full force until altered or repealed by 
the common council in conformity with the provisions of this act, but 
all by-laws, ordinances and regulations inconsistent with this act are 
hereby abolished. R. S. 1894, § 4055. 

See note, ante, § 382. 

Charter — Rules of construction. — The charter or statute by which a municipal cor- 
poration is created or governed is its organic law, and the rules applicable to the inter- 
pretation of constitutions may be used in the construction thereof. Newcomb v. City of 
Indianapolis, 141 Ind. 451. 

For rules of construction, see ante, § 45, general note. 

Incorporation and org^anization.— For decisions relating to incorporation and organ- 
ization under the general law of 1867, see ante, § 46, notes. 

Org-anization of municipal corporation— Validity of tested by quo warranto.— See 
ante, § 46, notes. 

Incorporation— Presumption as to— Prescription— Judicial notice of.— See ante, 
§ 46, notes. 

Amendments — Repeal, etc. — The charter of a municipal corporation may be amended 
or repealed at the pleasure of the legislature. Special charters may be amended by 
either general or special act. See ante, § 46, notes and cases. 

(530) 



DO 



31 INCORPORATION AND .OFFICERS. § 692 



Municipal powers— Sovereig-n—Leg-islative— Judicial— Not liable for exercise or 
non-exercise of. — See ante, § 46, notes. 
Municipal corporation defined. — See ante, § 46, notes. 

692. Elective officers — Election — Terms. — 2. The elective officers 
of such cities shall be a mayor, city clerk and councilmen, as herein- 
after provided. The elections of such cities shall be held as herein- 
after provided". On the first Tuesday in the month of May for the 
election of mayor, clerk and councilmen, and the first election here- 
after for such officers shall be held in such cities on the first Tuesday 
in May, A. D. 1898, and the said officers shall hold their respective 
offices until the first Tuesday in May, 1901, when the second election 
of such officers shall be held, and the elections thereafter shall be 
held biennially on the first Tuesday in May, and such officers so 
elected shall hold their offices respectively for two years, and until 
their successors are elected and qualified. Such elections shall be held 
in conformity to and in accordance with the election laws of this 
state, and with the laws for the making out of certificates and mem- 
oranda of the result, and the delivery of the list of voters and the tally 
papers, the assemblage of inspectors or judges of elections as a board 
of canvassers, and the duties of such board in reference to state 
elections: Provided, That such board in city elections shall assemble 
in the room of the council of such city on the day following such elec- 
tion at 10 o'clock A. M. The duties of the county clerk in reference 
to such state election shall be performed by the clerk of such city. 
All special elections in such city shall be governed by the same pro- 
visions. The laws of this state in reference to contests after state 
elections and all other matters shall be applicable to such city elec- 
tions as far as they are adapted to the same. [As amended, Acts 1897, 
p. 197. In force March 6, 1897.] Burns' Supp. 1897, § 4056. 

City officers— Leg^islature can not appoint.— See ante, § 59, notes. 

Nature of office— Salaries— Allowances, etc.— See ante, § 59, note. 

Officers — Duties— Liabilities.— See ante, § 59, note. 

Election of officers— Validity of— Quo warranto.— See ante, § 59, note. 

Officers— Jurisdiction of— Injunction- Mandamus.— See ante, § 59, note. 

Removal of officers.— See ante, § 59, note. 

Mayor— Under g'eneral law.— See ante, § 80, note. 

Councilman. — And other officers, under general law, see ante, §§ 59-68. 

Municipal elections.— See ante, § 61, ef seq., notes. 

693. Old officers, powers continued. — 3. On and after the first 
Tuesday of May, 1894, the common council, mayor, city clerk and 
all other city officers and employes, shall possess the powers conferred 
by this act and no others. Until then they shall have the power now 
and heretofore conferred by law. All officers created by the statutes 
of the state or ordinances of the cit}^ heretofore in force, in conflict 
with this act are hereby abolished on and after said first Tuesday in 
May, 1894, except as herein otherwise provided, but until that time 
the officers filling the same shall continue in office and have and pos- 



§ 694 CITIES OF MORE THAN THIRTY-FIVE THOUSAND. 532 

sess the powers and perform the duties now and hereafter conferred by 
law, and the members of the common council of such city heretofore 
elected shall hold their offices until the first Tuesday of May, 1894: Pro- 
vided, however, They shall not be removed from office except by impeach- 
ment, as provided herein. In case such city, prior to the taking effept 
of this act, shall have commenced, by its proper officers, any proceed- 
ings or undertakings of a public nature which w^as [were] law^fully com- 
menced or undertaken, the same shall not be interrupted by the 
passage of this act, but it shall be taken up and carried forward by 
the proper officer or department as prescribed by this act, except that 
in case of public improvements of any sort, whether of sew^ers, streets, 
alleys, levees, public buildings, or any other matter of an executive 
nature, in which a contract has not at the time of the passage of this 
act been actually let and entered into, the executive department hav- 
ing charge of such matter shall not be bound, unless it so elects, by 
the previous proceedings, but may review the whole subject and 
modify, change or rescind all orders previously made in that behalf. 
The present officers of such city shall surrender the custody of all prop- 
erty, records and documents of every nature whatsoever, to the appro- 
priate officer or department entitled to the possession of the same 
under this act. R. S. 1894, § 4057. 
See notes to ante, § 59, et seq. 

694. Yacancies. — 4. In the event of a vacancy occurring in any 
elective office of said city from death, resignation or other cause, ex- 
cept mayor, it shall be the duty of the acting mayor within ten days 
of such time to fill such vacancy by appointment for the unexpired 
term, subject to the approval of the council. R. S. 1894, § 4058. 

695e Notice to officers elected. — 5. The city clerk shall forthwith, 
after the execution of the certificate of election by the board of in- 
spectors of elections of said office, as hereinbefore provided, notify 
every person so elected of the time w^lien he must qualify, either by 
personal service or leaving copy at his usual place of residence, and 
shall make return of such service and file the same in his office. R. 
S. 1894, § 4059. 

696. Oaths of officers — Bonds. — 6. Every elective officer of such 
city shall, before entering upon the duties of his office, take and sub- 
scribe an oath, to be indorsed on the back of his certificate of election, 
and every appointive officer shall likewise take such oath, to be indorsed 
on the back of his certificate of appointment, before some officer au- 
thorized to administer the same, to support the constitution of the 
United States and the constitution of the state of Indiana, and to faith- 
fully and honestly discharge all his official duties, such oath to be filed 
with the city clerk. Each of said officers, except the mayor and mem- 
bers of the common council, shall likewise execute a bond with surety, 
to be approved by the mayor, payable to such city in such penal sum 
as said council may enact by ordinance covering such cases, condi- 
tioned for the faithful performance of the duties of his office, and the 



533 LEGISLATIVE COMMON COUNCIL. § 697 

payment of all moneys received by him as such officer to the proper 
person, such bond to be filed with the head of the department of 
finance. Any person who shall not file his oath, or oath and bond, as 
the case may be, with the proper officer, within ten days after the be- 
ginning of the term for which he is elected or appointed, shall be 
deemed to have refused to serve, and shall forfeit to the city the sum 
of ten dollars ($10), recoverable in a civil action, and the office shall 
be deemed to be vacant: Provided, That in case of such default a 
member-elect of the council may, within thirty days from the date of his 
election, present his excuse therefor in writing to the body to which 
he is elected, and any other officer may, within the same time, present 
his excuse in writing to the council, and if such excuse is accepted, 
may be relieved from such penalty, and on taking such oath and giv- 
ing such bond may assume the duties of his office. R. S. 1894, 
§ 4060. 
See note, ante, § 113. 

697. Officers not interested in contracts. — 7. No member of the 
council, nor any other officer, clerk or deputy, or employe of such 
city shall, either directly or indirectly, be a party to, or in any man- 
ner interested in any contract or agreement, either with such city, for 
any matter, cause or thing, or by which any liability or indebtedness 
is in any way or manner created or passed upon, authorized or approved 
by said council, or either of them, or by any officer, board, clerk, 
deputy or employe of such city. Any contract in contravention of the 
foregoing provisions shall be absolutely void. Whoever shall know- 
ingly violate the provisions of this section shall be fined not more 
than one thousand dollars ($1,000), to which may be added imprison- 
ment for any period not exceeding one year. R. S. 1894, § 4061. 

See ante, § 122, and posf, § 1420 and notes. 

698. Purchase of claims by officers, — 8. No councilman, or other 
officer, clerk, deputy or employe of such city shall purchase, either 
directly or indirectly, any bond, order, claim or demand whatever 
against such ciij, during his continuance in office or employment for 
any less sum than the amount specified therein; and any bond, order, 
claim or demand so purchased by any such person, in contravention 
of the foregoing provision, shall be forfeited to such city, and no ac- 
tion shall ever be maintained thereon. Gifts and the acquirements of 
equitable interests shall be deemed to be within the meaning and scope 
of the provisions of this section. R. S. 1894, § 4062. 

ARTICLE 2— LEGISLATIVE— COMMON COUNCIL. 

SEC. SEC. 

699. Legislative authority. 704. Meetings of council — Quorum. 

700. Wards— Change of boundaries. 705. Mayor to preside. 

701. Councilmen — Election — Terms. 706. Meetings public. 

702. Qualifications of councilmen. 707. City clerk — Duty. 

703. Expulsion of councilmen. 708. Appropriation ordinances — Signing. 



§ 699 CITIES OF MORE THAN THIRTY-FIVE THOUSAND. 534 

SEC. SEC. 

709. Passage of ordinances. 721. Bonds— Issue and sale. 

710. Publication of ordinances. 722. Temporary loans. 

711. Approval of ordinances— Veto. 723. Eefunding bonds. 

712. Eecording of ordinances. 724. Warrants -When not to issue. 

713. Powers of council generally. 725. Interest. 

714. Penalties imposed. 726. Continuation of appropriations and 

715. Imprisonment. tax levy. 

716. Executive and administrative duties. 727. Boundaries and annexation. 

717. Investigating departments. 728. Remonstrance— Proceedings. 

718. Impeachment — Eemoval. 729. Parts of cities or towns not to be an- 

719. Taxation. nexed. 

720. Loans — Limit. 730. Disannexation of territory. 

699. Legislative autliority,— 9. The legislative authority of the 
city shall be vested in a common council. R. S. 1894, § 4063. 

For decisions and interpretation of statutes relating to the powers of the common 
council under the general law of 1867, see notes to ante, §§ 114-211. 

700. Wards — Change of boundaries.— 10. The wards of such city 
shall remain in number and boundaries the same as now existing un- 
til such time as the same may be changed as hereinafter provided. 
The common council shall have power to readjust and fix the bounda- 
ries of the wards of such city, but shall make such wards of as nearly 
equal population and of as compact and contiguous territory as prac- 
ticable. Such readjustment or fixing the boundaries of such wards 
shall not occur oftener than once in a period of six years, unless the 
same is made necessary by the annexation of new territory, in which 
case the same may be done at any time by ordinance passed by a two- 
thirds vote by the common council, but such new territory may be 
added to any existing ward or wards by ordinance of the council. 
R. S. 1894, § 4064. 

Creation of wards— Judicial notice of existing* wards. — See ante, § 53. 

701. Councilmen— Election — Terms. — 11. Each ward shall elect 
two councilmen at the city election hereinbefore provided for, whose 
terms of office shall commence at 12 o clock noon on the first Tuesday 
of May following such election, and shall continue until their succes- 
sors are elected and qualified, as hereinbefore provided. [As amended. 
Acts 1897, p. 197. In force March 6, 1897.1 Burns' Supp. 1897, 
§ 4065. 

702. Qualifications of councilmen. — 12. No person shall hold the 
office of councilman from any ward unless he is at the time of 
his election a resident and voter thereof; a removal of residence 
from such ward shall vacate his office. [As amended, Acts 1897, p. 
197. In force March 6, 1897.] Burns' Supp. 1897, § 4066. 

708. Expulsion of councilmen.— 13. The council shall have 
the pov/er to expel any of its own members for violation of 
official duty, and to declare the seat of any member vacant by reason 



535 LEGISLATIVE COMMON COUNCIL. § 704 

of his disability to perform the duties of his office. The council may 
adopt its own rules to govern such cases, but a two-thirds vote shall be 
required to expel a member or vacate his seat under this section. R. S. 
1894, § 4067. 
See note, ante, § 119. 

701, 3Ieetings of council — Quorum, — 14. The members of the 
common council shall hold their first regular meeting on the second 
Tuesday of May, 1894, at 7:30 o'clock p. m., in the council chamber. 
The council shall thereafter meet not less than once a month, and as 
much oftener as their rules may require. Special meetings may be 
held on the call of the mayor, or on such other call as may be provided 
for by rules. A majority of all the members elect shall constitute a 
quorum. It shall require a majority vote of all the members elect to 
pass an ordinance. Wherever it is provided in this act that an ordi- 
nance shall be passed by a two-thirds vote, the same shall be con- 
strued to mean two-thirds of all the members elect. R. S. 1894, 
§ 4068. 

705. Mayor to preside. — 15. It shall be the duty of the mayor to 
preside at all meetings of the common council, and in his absence for 
any cause, the council shall choose a presiding officer pro tern, from 
their members. R. S. 1894, § 4069. 

See note, ante, § 114. 

706. Meetings public. — 16. All meetings of the council shall be 

public. R. S. 1894, § 4070. 

707. City clerk— Duty.— 17. The city clerk shall be the clerk of the 
common council. It shall be his duty to keep the files and papers 
thereof, to make and keep an accurate minute and journal of the pro- 
ceedings, to enter the ayes and noes on the passage of every ordinance 
and resolution in full, and on all other votes whenever requested to do 
so by two members. R. S. 1894, § 4071. 

See_pos^, §742. 

For duties of city clerk under general law of 1867, see ante, §§ 86, 87 and notes. 

708. Appropriation ordinances — Signing,^ — 18. All ordinances, or- 
ders, resolutions and motions for the government or regulation of such 
city, and all ordinances for the appropriation of money, shall originate 
in the common council. No appropriation shall be made for the pay- 
ment of money, otherwise than by ordinance, specifying by items the 
amount thereof and the department for which such appropriation shall 
be made. The council may prescribe its own rules. No ordinance, 
order or resolution shall become law, or operative, until it has been 
signed by the presiding officer thereof, and approved in writing by the 
mayor, or passed over his veto, as provided in this act, and when- 
ever the same may be necessary, promulgated according to law. R. S. 
1894, § 4072. 

709. Passage of ordinances. — 19. No ordinance shall be passed 



§ 710 CITIES OF MORE THAN THIRTY-FIVE THOUSAND. 53^ 

on the same day, or the same meeting, that it is introduced except by- 
unanimous consent. R. S. 1894, § 4073. 

See notes, ante, §§ 117, 117a, 118, 124. 

710, Publication of ordinances. — 20. Every ordinance impos- 
ing a penalty or forfeiture for the violation thereof, shall, before 
the same shall take effect, be published once each week for two weeks 
consecutively in some newspaper printed in the city: Provided, That 
in case of insurrection, riot, pestilence, conflagration or other public 
necessity requiring immediate operation of such ordinance, it shall 
take effect as soon as proclamation is made thereof by the mayor, and 
posted in five public places in each of the wards of such city: Pro- 
Tided, further. The common council shall have discretionary power to 
direct the publication of any ordinance in a daily newspaper, and the 
publication thereof for one day each in any two consecutive weeks in 
any daily paper shall be deemed sufficient to allow the same to take 
effect: Provided, That when no paper is published in such city, 
printed or written copies of such ordinance shall be posted up by the 
city clerk in at least five public places in each ward of such city for 
two weeks before the taking effect thereof: Provided, further, That 
whenever any city shall publish any of its ordinances in book or 
pamphlet form, such publication shall be of itself sufficient publica- 
tion, and such ordinance or ordinances shall take effect two weeks 
from the date of publication appearing upon the said book or pam- 
phlet. And such publication in book or pamphlet form, if the same 
shall purport to be printed under the authority of the common coun- 
cil of such city, shall be presumptive evidence in all courts and 
places, of the ordinances therein contained and of the date of adop- 
tion, and that the same are properly signed, attested and recorded, 
and approved by the mayor. R. S. 1894, § 4074. 

See notes, ante, §§ 82, 84, 117, 117a, 118, 124. 

711. Approval of ordinances — Yeto. — 21. Every ordinance, order 
or resolution of the common council shall, immediately upon its en- 
rollment, attestation and signature by the clerk, be presented by him 
to the mayor, and a record of the time of such presentment kept by the 
clerk. If the mayor approves it he shall sign it, and it shall become a 
law. If he does not approve it he shall return it to the clerk, with his 
objections in writing, within ten days after receiving it, and the clerk 
shall present the same to the common council at its next meeting. It 
shall be the mayor's official duty to express, in writing, his approval 
or^ disapproval, as hereinbefore provided. If for any reason the mayor 
fails to discharge his duty within the time named, by approving or 
disapproving the same, in writing, the same shall be deemed equiva- 
lent to a disapproval, and in all cases of disapproval by the mayor the 
same shall not become a law unless the body in which the measure 
originated, within thirty days after the time named for the mayor's 
action, again pass the same by a two-thirds vote. R. S. 1894, § 4075. 



537 LEGISLATIVE COMMON COUNCIL, § 712 

712. Eecordiiig of ordinances. — 22. All ordinances shall, within 
a reasonable time after their approval by the mayor, or their pas- 
sage over his veto, be recorded in a book for that purpose kept 
by the city clerk. Such record shall include the signature of the pre- 
siding officer, attestation of clerk, and the mayor's written approval 
or disapproval, and memorandum of its passage over his veto. Such 
record or certified copy thereof shall be presumptive evidence of the 
going into effect of such ordinance. On the passage of any ordinance 
or resolution by the council, the yeas and nays shall be taken and en- 
tered in full on the journal. R. S. 1894, § 4076. 

See notes, ante, §§117, 117a, 118, 124. 

713. Powers of council generally. — 23. The common council shall 
have power to enact ordinances for the following purposes: To pro- 
vide a corporate seal, with appropriate device, for such city, to be af- 
fixed to all instruments or writings needing authentication. To fix 
the salaries or compensation of the various officers and employes of 
such city, except where a different provision is made in the act, upon 
this subject: Provided, That no member of the common council shall 
be allowed more than one hundred and fifty dollars ($150) for each 
year of his service as such member, nor shall any salary be charged 
after the election or appointment of a person to an office, until his term 
expires or his office is vacated. To protect all city property, real and 
personal. To provide for the punishment of contempt and disorder 
in the rooms of the council and of the police court. To authorize a 
census of the city. To receive gifts, donations, bequests and public 
trusts, and to agree to conditions and terms accompanying the same 
and bind the corporation to carry them out. 

PUBLIC COMFORT AND HEALTH. 

To declare what shall constitute a nuisance, to prevent the same, 
require its abatement, authorize the removal of the same by the proper 
officers, and provide for the punishment of the person or persons 
causing, continuing or suffering the same to exist, and to assess the 
expenses of its removal against such person or persons, and to provide 
for collecting such expenses either by placing the same on tax dupli- 
cate or by suit. To regulate or prohibit the use of hand-organs or in- 
struments of any annoying character, or other music of itinerant per- 
formers, in the streets, alleys or public places of such city. To authorize 
the cleaning and purification of water and water-courses, by the board 
of public works, to prevent encroachment or injury to the banks there- 
of or the casting into the same of offal, dead animals, logs, rubbish, 
dirt or impure liquids of any kind whatever. For the purposes of 
this paragraph, jurisdiction is hereby conferred upon said city for ten 
miles from the corporate limits thereof. To regulate the location and 
management of starch factories, glue factories, renderies, tallow can- 
dleries, bone factories, soap factories, tanneries, foundries, slaughter- 



§ 713 CITIES OF MORE THAN THIRTY-FIVE THOUSAND. 538 

houses, breweries, distilleries, livery stables, and of all other es- 
tablishments of which the business or trade may become noxious 
or injurious to public comfort or health; to prohibit the erection 
of such buildings or the continuance of such noxious or injurious 
occupations therein whenever the public comfort or health requires 
it. For the purpose of this paragraph, such city is hereby given 
jurisdiction for four miles from the corporate limits thereof To 
prevent or regulate the use of fire-arms, fire-works, bon-fires, or other 
things or practices tending to endanger persons or property. To reg- 
ulate and prohibit the running at large of cattle, horses, swine, fow^ls, 
sheep, goats, dogs or other animals; to authorize the impounding, 
keeping, sale and redemption of such animals, when found in viola- 
tion of the ordinances in such cases provided. To prevent the deposit 
of any unwholesome substance, either on private or public property; 
compel its removal to designated points, and to require slops, gar- 
bage, ashes, and other waste or unwholesome material to be removed 
to designated points, or to require the occupants of premises to place 
them conveniently for removal. For the purpose of this paragraph, 
jurisdiction is given such city four miles from the corporate limits. 
To compel the occupants of any premises, buildings or out-houses 
situated in said city, or within four miles of the corporate limits 
thereof, when the same has become filthy or unvv^holesome, to abate or 
cleanse the same, and to authorize the same to be done by the proper 
public officers, and to assess the expense thereof against such property. 
To regulate or prevent the storage of gunpow^der, tar, pitch, resin, coal 
oil, benzine, turpentine, hemp, cotton, nitro-glycerine, dynamite, giant 
powder, petroleum, gasoline or gas, or any product thereof, or an}^ other 
explosive or combustible material, or any material which may seem 
dangerous. To regulate the location and management of cemeteries or 
burial places within or without such city, and to protect the same and to 
provide for the sanctity of the dead; to regulate or prohibit the interment 
of bodies; to authorize the removal of bodies now or hereafter buried, or 
of cemeteries to some other proper place. For these purposes such 
city shall have jurisdiction for four miles from the city limits. To 
establish quarantine regulations. To authorize the removal or confine- 
ment of persons having infectious or pestilential diseases. For the 
purpose of this paragraph and the preceding paragraph, jurisdiction is 
given such city for four miles from its corporate limits. To regulate 
or prohibit the ringing of bells, crying of goods or sounding of steam 
whistles. To direct the location and regulate the management of all 
public markets and market places, whether established by the city or 
by private individuals; to prevent the offenses of regrating and fore- 
stalling. To regulate and require reports and records of births and 
deaths, and to make such requirements as may be deemed necessary 
to prevent tbe spread of contagious or infectious diseases. To author- 
ize and require the inspection and condemnation, if unw^holesome, and 
to regulate the sale of meats, poultry, fish, butter, oleomargarine, cheese, 
lard, vegetables and all other food or provisions. To regulate the 



539 LEGISLATIVE COMMON COUNCIL. § 713 

selling, weighing, measuring of hay, wood, coal, coke and all other arti- 
cles sold by weights and measures, and to require dealers to keep hon- 
est weights and measures, and to provide for their inspection and sell- 
ing. To authorize and require the inspection and licensing of steam 
boilers and elevators, and to prohibit their use when unsafe or danger- 
ous, or without license. To define fire limits in such city, and the 
character of buildings which are forbidden to be erected within such 
limits, and to prohibit the erection of buildings in such city without a 
license first obtained therefor, and to regulate the construction of build- 
ings to prevent the spread of fire. To authorize and require the in- 
spection of buildings and structures erected, or to be erected, or in the 
process of erection. To authorize the license therefor to be revoked, 
and the condemnation thereof in whole or in part, when dangerous or 
insecure in the opinion of the department of public works, and to au- 
thorize the same to be taken down within a specified time by the owner 
thereof; or in default thereof to authorize the same to be taken down 
at the owner's expense; or in case of an emergency, to authorize the 
same to be taken down by the department of public works, without 
delaying for the owner to do so. To compel persons about to undertake 
dangerous improvements to execute a bond of sufiicient sureties, con- 
ditioned that the owner or contractor will pay all damages which may 
be sustained by any person or property from such work. To make all 
regulations which may be' deemed expedient for the promotion of 
health or suppression of disease. To regulate the construction of 
chimneys, smoke-stacks, hearths, ovens; the erection of stoves and 
stovepipes, boilers and apparatus used in buildings or other places, 
and to cause the same to be removed or made secure then consid- 
ered dangerous; to compel owners and occupants of houses and build- 
ings to make scuttles in the roof thereof with stairs or ladders leading 
to the same, and to compel the erection of fire escapes. To authorize 
and require the inspection of gas pipes, water pipes, plumbing, drain- 
age, sewage and electric lines or wires on private property or elsewhere; 
to compel them to be repaired or made secure by the owner or occu- 
pant, and on failure of such owner or occupant to do so, to authorize 
or require the gas or electric current to be shut off from the same un- 
til such repairs are made. To regulate and prohibit the keeping of 
any lumber yard and the placing or piling of any lumber, wood or 
other combustible material within the fire limits. 

STREETS. 

To prevent immoderate or careless driving or riding. To regulate 
the use of streets and alleys by vehicles, and designate the kind of 
conveyances and vehicles which may not use designated streets, which 
have been improved, together with hours for the use of such streets 
by certain specified classes of vehicles. To prevent the incumbering 
of streets, alleys, squares, sidewalks and crossings with vehicles, 
horses or any substance or material interfering with the free use of the 



§ 713 CITIES OF MORE THAN THIRTY-FIVE THOUSAND. 540 

same. To regulate the speed of horses, wheeled vehicles, cars and 
locomotives. To regulate and protect all bridges, culverts, tunnels, 
viaducts, aqueducts, sewers, canals and hydrants wholly or partly in 
said city, and to prohibit digging in such streets, alleys or public 
places, or in any way injuring, disturbing or making holes in the sur- 
face thereof. To regulate the use of sidewalks and all structures, in, 
under or over the same, and to require the owner or occupant of prem- 
ises to keep the sidewalks in front of the same free from snow and 
other obstructions, and prescribe hours for cleaning the same. To 
regulate and prevent the throwing or depositing of sweepings, dust, 
ashes, offal, dirt, garbage, paper, hand-bills, dirty liquids or any other 
material into any streets, alley or public places. To regulate and pre- 
vent the use of streets, sidewalks and public places for signs, sign 
posts, awnings, awning posts, holes, horse troughs, steps, railings, 
entrances, racks, posting hand-bills and advertisements, and display 
of goods, wares and merchandise. To regulate and prohibit the ex- 
hibition or carrying of banners, placards, advertisements or hand- 
bills on the streets, alleys, or public places. ' To regulate and prevent 
the flying of flags, banners, or signs across the streets or from houses. 
To regulate the numbering of houses and lots, and compel the owners 
to renumber the same, or in default thereof to authorize and require 
the same to be done by the department of public works at the owner's 
expense, such, expense to constitute a lien upon the property, and en- 
forceable as provided in the ordinance. To regulate or change the 
name of streets and parks. To regulate the making of private con- 
nection with sewer, gas, and water pipes, and to compel owners of prop- 
erty to bring such connections inside of the curb of streets before per- 
manent improvement thereof, and in default of the owners making 
such connections^ to authorize the city to do so at the owner's ex- 
pense, and to make such expense a lien on the property, and collecti- 
ble in the same manner that expenses for sprinkling streets are collecti- 
ble. 

OCCUPATIONS. 

To regulate, license and tax street cars, telephone and telegraph 
companies; the use of coaches, hacks, drays, and all other vehicles for 
the transportation of passengers, freight or other articles to or from 
points within said city, for hire or pay. To regulate, license, tax, 
restrain or prohibit theatrical and all other exhibitions, shows or en- 
tertainments for which money is demanded or received: Provided, 
That lectures on scientific, historic, benevolent, artistic, religious or 
literary subjects and apparatus for the elucidation of the same, and 
specimens of fine art, shall not be deemed to be within this provision. 
To license, tax, regulate or prohibit runners at railroad stations and 
other places for stages, cars, public houses or other things or persons. 
To regulate the sale of all kinds of property at auction in the streets, 
stores, shops or elsewhere in the city, and to [license auctioneers. 
To] license, tax, regulate and prohibit the supply, distribution 



541 LEGISLATIVE COMMON COUNCIL. § 713 

and consumption of artificial and natural gas, of water and of elec- 
tricity, and to fix the prices thereof. To license, tax, regulate, sup- 
press and prohibit hawkers and itinerant dealers, peddlers and pawn- 
brokers, and to revoke such license at pleasure. To license, tax and 
regulate public hackmen, draymen, omnibus drivers, carters, cabmen, 
porters, expressmen, bill posters and all other persons pursuing like 
occupations, and to prescribe their compensation. To license, tax, 
regulate or prohibit all inns, taverns, hotels, restaurants, or other places 
used or kept for public entertainments. To license, tax and regulate 
the selling or giving away of any spirituous, vinous or malt liquor; 
and to tax, license and regulate places where such liquors, or either 
of them, are manufactured or stored, or where such liquors, or either 
of them are to be used on the premises where given away, sold, stored 
or manufactured; but such licenses shall not exceed the amount pro- 
vided by the laws of this state for other cities thereof. For the pur- 
pose of this section, jurisdiction is given such city for four miles from 
its corporate limits. To tax, license and regulate distilleries and brew- 
eries, and the depots or agencies established in said city of all brew- 
eries and distilleries. To regulate and license lumber yards, livery 
stables and public scales. To tax, license and regulate second-hand 
and junk stores and to forbid their purchasing or receiving from min- 
ors any article whatever without the consent of their parents or guard- 
ians. To license, tax, regulate and prohibit the keeping or harboring 
of dogs. To license, tax, regulate and prohibit dairies and keeping of 
milch cows. To license, tax and regulate wheeled vehicles: Pro- 
vided, That the funds derived therefrom shall be applied only to the 
maintenance and repair of streets and alleys. To license, tax and 
regulate branch stores or establishments, and all other concerns es- 
tablished in said city for temporary business only. 

MORALS. 

To preserve peace and good order, prevent vice and immorality, 
quiet riots and dispel disorderly assemblages. To suppress gaming 
and gaming-houses and places and houses of ill-fame or assignation, or 
houses kept for any immoral purposes; to prohibit and destroy any in- 
struments and devices of gaming and to restrain fraudulent practices. 
To license, tax, regulate, restrain or prohibit all tables, alleys, 
machines, devices or places of any kind for sports or games. To reg- 
ulate the time and place of, restrain or prohibit bathing in the rivers 
or public waters of such city, to direct the location and management 
of public bath-houses, to license the same or to require the same to be 
closed if deemed expedient. To restrain and punisli vagrants, mendi- 
cants, street beggars, common prostitutes and their associates, thieves 
and criminals or persons known or reputed to be such. For the pur- 
poses of the last five paragraphs, such city is given jurisdiction for 
four miles from the limits thereof. To prohibit cruelty to children or 
animals. 



§ 713 CITIES OF MORE THAN THIRTY-FIVE THOUSAND. 542 



DRAINAGE. 



To keep open rivers, streams or water-waj^s, prevent the waters 
thereof from pollution; jurisdiction for these two purposes being given 
such city for ten miles from its corporate limits. To provide for 
change in the course of streams, rivers or water-ways, passing through 
or bordering upon the corporate limits thereof, and to authorize the 
exercise of the power of eminent domain, either within or without such 
city, for the purposes of securing a new course for such streams, river or 
water-way. To provide on what terms real estate in such city may be 
drained or sewered by means of surface or under drains, or sewers, 
over and across other real estate therein or within four miles thereof, 
whether within or without the limits of another municipal corpora- 
tion, and to provide the methods of assessing the property benefited 
thereby and collecting such assessment to pay for the costs and uses 
thereof. 

RAILROADS. 

To secure the safety of citizens and others in the running of trains 
in or through such city; to require persons or corporations owning or 
operating railroads to fence their respective railroads, to construct 
cattle-guards, street crossings and viaducts and public roads, and to 
keep the same in repair and safe condition for persons on foot, in ve- 
hicles or otherwise; to construct and maintain gates, and to keep flag- 
men at railroad crossings and to provide protection against injury to 
persons or property from the operation of said railroads; to authorize 
and require railroad companies to change the location, grade and cross- 
ings of their respective railroads, to compel them to raise or lower 
their railroad tracks to conform to any grade which may be establish- 
ed by such ordinance; to compel persons or companies owning or oper- 
ating railroads to construct bridges, viaducts or tunnels, and ap- 
proaches thereto, across their respective railroads or rights of way at 
street or alley crossings; to compel railroad companies to make and 
keep open and in repair ditches, drains, sewers, and culverts along 
and under their respective tracks; to require railroad corporations or 
persons ov^ning or operating railroads to keep gutters and street 
crossings clean along their right of way; to prohibit the laying of any 
railroad track across any street or alley or public place without per- 
mission first obtained therefor from the department of public works, 
and to provide for the taking up and removing any track so laid with- 
out notice, and charge the expense thereof against the offending per- 
son or corporation; to require any person or company owning or op- 
erating any railroad to take up and change the location of any railroad 
track or switch heretofore or hereafter laid within the limits of said 
city. To regulate and protect, except as otherwise herein provided, 
fire engines, hose, hook and ladders, and all other property or appara- 
tus belonging to or used by the police or fire department, and to pre- 
vent interference with the members of the police or fire departments 
while on duty. To authorize the closing of any street, alley or public 



543 LEGISLATIVE COMMON COUNCIL. § 714 

place, or part thereof, whenever the public safety may require. To 
authorize the alienation and conveyance of any property, real or per- 
sonal, belonging to such city: Provided, That no such property shall 
be sold until the same has been appraised by three disinterested free- 
holders of such city, appointed by the judge of the circuit court, in the 
county where such city is located, neither of said appraisers to be offi- 
cers or employes of such city, and their sworn valuation in writing re- 
turned to the mayor. No sale or conveyance shall be made for a less 
sum than such appraisement, and in the case of real estate, only by a 
two-thirds vote of the common council. To regulate pounds, market- 
houses, market places, houses of refuge, pest-houses, hospitals, dis- 
pensaries, engine-houses and all other public city institutions. 

MISCELLANEOUS. 

To regulate the building of party walls and partition fences, pre- 
scribe in what proportion adjoining owners shall bear the expense of 
the same, in what manner such expense shall be levied and collected 
and to define the terms upon which partition walls already established 
may be used by adjoining owners. To carry out the objects of the 
corporation, not hereinbefore particularly specified: Provided, That 
such ordinances are not inconsistent with the laws of the state. R. S. 
1894, § 4077. 

Powers of common council.— See ante, §§ 124, 404, notes. 

Municipal powers— Mode of exercise— Municipal contracts— Municipal property, 
etc.— See ante, § 124, notes. 

Legislative and ministerial powers— Police power.— See ante, § 124, note. 

Actions— Statute of limitations, etc.— See aiite, § 124, note. 

Ordinances— Enactment, amendment, repeal, validity, invalidity and construc- 
tion of. etc.— See ante, §§ 117, 117a, 118, 124, notes. 

Resolution and rules of council.— See ante, §§ 116, 117, 117rt, 118, 124, notes. 

Special subjects— Powers of council to leg'islate concerning*. — For special subjects 
under the general law over which council has power to legislate, and the decisions of 
the courts relating thereto, see ante, § 124, notes. 

714:. Penalties imposed. — 24. In every ordinance which the com- 
mon council shall pass, there may be imposed a penalty for the viola- 
tion or non-performance thereof. This penalt}^ ma}" be either a for- 
feiture of money, or a fine or imprisonment, or both of the last two: 
Provided, That no penalty or fine shall exceed five hundred dollars, 
($500) and no imprisonment shall exceed six (6) months for one 
offense. R. S. 1894, § 4078. 

See notes, a7ite, §§ 118, 211, and post, §§1237, 1383. 

715, Imprisonment. — 25. The city council shall have power to pro- 
vide by ordinance for imprisonment of any person against whom a pen- 
alty, fine or cost for violation of any penal ordinance shall have been 
adjudged, until such fine, penalty and costs are fully paid or replevied; 



§ 716 CITIES OF MORE THAN THIRTY-FIVE THOUSAND. 544 

also, to compel the enforcement of manual labor by such defendant, 
and by persons sentenced to imprisonment, by the use of sufficient 
force and means. R. S. 1894, § 4079. 
Penalty— Not a debt, in the sense of the constitution. See ante, § 12, note. 

716, Executive and administratiye duties. — 26. Whenever any 
executive or administrative function shall be required to be performed 
by any ordinance or resolution of such common council, the same 
shall be performed by the proper executive department, and not by 
said council. No new department shall be created. Said ordinance 
shall designate the departm.ent which is to perform the duties there- 
under; but if designation is not made, either by statute or ordinance 
or resolution, the mavor shall assign such duties to the proper depart- 
ment. R. S. 1894, ( 4080. 

See note, ante, § 407. 

INVESTIGATION AND IMPEACHMENT. 

717. Investigating departments. — 27. The common council shall 
have power to supervise and investigate all departments, officers and 
employes of the government of such city, and to examine into any 
charges preferred against the same, and into the affairs of any corpo- 
ration, department or board in which the city may be interested, or 
with w^hich it may have entered into a contract, or may be about so to 
do. It shall have power of access to all records thereto pertaining, 
and power to compel the attendance of w^itnesses, and the production 
of books, papers and other evidence, at any meeting of the body, or 
any committee thereof, and for that purpose may issue subpenas and 
attachments in any case of inquiry, investigation or impeachment, 
and cause the same to be served and executed in any part of the county 
where such city is located. If any witness shall refuse to testify as to 
any fact within his knowledge, or to produce any books or papers 
within his possession, or under his control, required to be used as evi- 
dence in any case, the clerk of the body by whose authority such wit- 
ness was subpenaed, if so directed by the body or committee holding 
the investigation, shall forthwith report the facts relating to such re- 
fusal to the circuit or superior court in such county, or judge thereof, 
and all questions arising upon such refusal, and also upon any new 
evidence not included in such first report which new evidence may be 
offered either in behalf or against such witness, shall be heard by such 
court or judge. If the court or judge determine that the testimony or 
evidence required by such witness is competent and relevant and 
material, and ought to be given or produced by the w^itness, the court 
or judge shall make an order requiring the witness to testify, or to 
produce books and papers, or both. In case of a refusal to comply 
with such order, the court or judge shall have power to commit the 
Vvdtness or otherw^ise punish him for contempt, as provided for in the 
laws governing contempt of court in this state. No witness shall be 



545 LEGISLATIVE COMMON COUNCIL. § 718 

excused from testifying in any criminal proceeding, or in any investi- 
gation or inquiry before the council, or any committee thereof, or any 
officer of the city having the right to conduct the investigation, touch- 
ing his knowledge of any offense committed against the provisions of 
this act, or of any ordinance passed in pursuance thereof, or continued 
in force by this act. But such testimony shall not be used against 
him in any criminal prosecution whatever. R. S. 1894, § 4081. 
See note, ante, § 119. 

718. Impeaclmient — Removal. — 28. Whenever any written charges 
shall have been adopted by the council or any committee thereof, 
against any officer, employe or department of the corporation, except 
members of the council, the same shall be heard by the council, un- 
der such regulation as may be prescribed by ordinance. It shall re- 
quire a two-thirds vote to impeach or remove an officer or employe. 
R. S. 1894, § 4082. 

FINANCIAL. 

719. Taxation. — 29. The common council shall have the power 
to order and direct the levy of an annual tax not exceeding the rate of 
one dollar and twenty-five cents ($1.25) upon every one hundred dol- 
lars ($100) of valuation for any one year, as shown by the tax duplicate 
for the current year, and to manage the finances of the city, subject, 
however, to the powers and duties herein prescribed in respect to the 
several executive departments created by this act. The assessment of 
property and collection of taxes shall be made as now provided by 
law: Provided, That all real estate, within the limits of such city, not 
exempt from taxation by the laws of this state, shall be assessed at its 
fair cash value, without discrimination in the valuation of lands used 
for agricultural purposes within the limit of such city. R. S. 1894, 
§ 4083. 

See Taxation, R. S. 1894, ch. 108 (§8408, et seq.), and Burns' Supp. 1897, ch. 108 
(§8411, et seq.), and Acts 1899, pp. 422, 430, 497, 516. See ante, § 212, etseq., and notes. 

720. Loans — Limit. — 30. The common council shall have power 
to borrow money to an amount not exceeding two per cent. (2 per 
cent.) of the taxable property of such city, as the same may appear on 
the tax duplicate of such city, for the year in which such loan shall be 
effected: Provided, That the entire money borrowed shall not at any 
time exceed two per cent. (2 per cent ) of the taxable property of such 
city, except for the issue and sale of refunding bonds, as hereinbefore 
provided. Such loans may be made only for the purpose of procur- 
ing money to be used in the legitimate exercise of the corporate pow- 
ers of such city, and for the payment of legitimate corporate debts. 
R. S. 1894, § 4084. 

See constitational limitation, ante, § 39 and notes, and §§ 143, 411 and notes. 
CiT. AND To.— 35 



§ 721 CITIES OF MORE THAN THIRTY-FIVE THOUSAND. 546 

721. Bonds — Issue and sale. — 31. Such ordinance for loans may 
authorize the issue of bonds or other city obligation, negotiable or not, 
bearing interest at a rate not exceeding six per cent., and running not 
to exceed thirty years. Such ordinance shall provide for the time 
and manner of advertising the sale of such bonds or other securities, 
and of the receipt of bids for the same, together with the mode and 
terms of sale. All duties with regard to the preparation, advertise- 
ment, negotiation and sale of such bonds or other securities shall be 
performed by the head of the department of finance. Said officer, 
after causing such bonds to be properly executed, shall deliver the 
same to the city treasurer, taking his receipt therefor, and upon the 
conclusion of the contract for the sale of such bonds or other securi- 
ties shall certify to the treasurer the amount which the purchaser is 
to pay for the same, together with the name of the purchaser. And 
thereupon it shall be the duty of the treasurer to receive from the 
purchaser the amount so certified by the head of the department of 
finance, and to deliver the bonds or other securities to the purchaser, 
taking his receipt therefor. The treasurer and head of the department 
of finance shall thereupon each make a report of his proceedings to 
the mayor. R. S. 1894, § 4085. 

722. Temporary loans. — 32. Temporary loans may be authorized 
by ordinance of the common council in anticipation of the revenue of 
the city for the current and following year, and payable within that 
period, but the aggregate amount of such temporary loan in any fiscal 
year shall not exceed the amount of the city tax levy for the same 
3^ear. No temporary or other loan upon the revenue of any current 
or succeeding year shall be made until all temporar}^ loans upon the 
revenue of any preceding year shall have been fully paid. R. S. 1894, 
§ 4086. 

723. Refunding bonds. — 33. The common council shall have power 
to authorize the issue and sale of refunding bonds, in order to raise 
money to take up any outstanding bonds of such city, or to exchange 
with the holders of such outstanding bonds. The same shall be gov- 
erned by the provisions of the second preceding section, so far as the 
same are applicable. R. S. 1894, § 4087. 

Eefunding bonds, see ante, §§39, 143, 144, 157, 414, and post, §§1001, 1003, 1005 and 

notes. 

724. Warrants — When not to issue. — 34. No order or warrant shall 
be drawn against the funds of such city, in the hands of the treasurer, 
or other officer, unless an appropriation has been made by ordinance 
of money for such purpose which is not exhausted, or unless the same 
shall be for a salary fixed by statute or ordinance, or for the payment 
of some judgment, which such city is compelled to pay. R. S. 1894, 
§ 4088. 

725. Interest. — 35. All bonds or other securities offered for sale, 
pursuant to the provisions of this act, may bear annual interest not 
exceeding six per cent. (6 per cent.), may run not longer than thirty 
years, and may contain an option allowing such city to redeem the 



547 LEGISLATIVE COMMON COUNCIL. § 726 

same at earlier specified dates, in whole or in part, if so directed in 
the ordinance authorizing such issue. R. S. 1894, § 4089. 

726. Coutiiiuatiou of appropriations and tax levy. — 36. If the com- 
mon council for any year shall fail to pass ordinances fixing the an- 
nual tax levy and appropriating money for the various executive 
departments by or before the first day of October in any year, then 
and in that case the appropriations made for such department or de- 
partments for the preceding year shall be deemed to be continued and 
renewed for the current year, and the tax levy for the preceding year 
continued. R. S. 1894/§ 4090. 

ANNEXATION. 

727. Boundaries and annexation.- — 37. The common council shall 
have power, by ordinance, to declare and define the entire corporate 
boundaries of such city, and such ordinance, properly certified, shall be 
conclusive evidence, in any court or proceeding, of the boundaries of 
such city, except as provided in the next section. Such ordinance 
defining the entire city boundary may include contiguous territory, 
whether platted or not, not previously annexed, and such annexation 
shall be binding, unless such newly annexed territory shall be within 
the limits of another town or city, in which case there may be an 
appeal, as hereinafter provided. Said common council may also, 
by separate ordinance, not purporting to define the entire boundaries 
of such city, annex contiguous territory, whether platted or not, and 
whether in the limits of an incorporated town or not to such city; and 
a certified copy of such ordinance shall be conclusive evidence in 
any proceeding that the territory therein described was properly an- 
nexed and constitutes a part of such city, except as provided in the 
next section. Immediately after the passage of every such ordinance 
as provided for in this section, the same shall be published for at 
least two consecutive weeks in a daily newspaper of general circula- 
tion published in such city. R. S. 1894, § 4091. 

See chapter 1, article 6, Annexation of Territory, ante §§ 253-255 and notes, and chap- 
ter 6, article 2, Annexation — Boundaries, j?osi, §§1017-1048 and notes, and ante, §418 
and notes. 

728. Eemonstrance— Proceedings. — 38. Whenever such territory 
is annexed to such city, as provided in the foregoing section, 
whether by general ordinance defining the city boundaries, or by 
special ordinance for the purpose of annexing territory, and such 
territory so sought to be annexed is unplatted ground, or lies within 
the corporate limits of any other town or city, an appeal may be 
taken from such annexation, by one or more resident freeholders, 
in the territory sought to be annexed, filing their remonstrance 
in writing against such annexation, together with a copy of such or- 
dinance, in the circuit or superior courts of the county where such ter- 
ritory IS situated, within ten days after the last publication provided 



§ 729 CITIES OF MORE THAN THIRTY-FIVE THOUSAND. 548 

for in the preceding section; such written remonstrance or complaint 
shall state the reason why such annexation ought not in justice to 
take place. jSTotice of such proceedings by way of summons shall 
be served upon the proper officer of the city seeking to make an- 
nexation, and such city shall become defendant in such cause, and shall 
be required to appear and answer as in other cases. The court 
shall thereupon proceed to hear and determine such appeal wdthout 
the intervention of a jury, and shall give judgment upon the question 
of such annexation according to the evidence which either party may 
introduce, relevant to the issue. If the court should be satisfied upon 
hearing that less than 75 per cent, of the resident freeholders of 
the territory sought to be annexed have remonstrated, and that the 
adding of such territory to the city will be for its interest and will cause 
no manifest injury to the persons owning real estate in the terri- 
tory sought to be annexed, he shall so find, and said annexation 
shall take place. If the court shall be satisfied that 75 per cent, or 
more of the resident freeholders in the territory sought to be an- 
nexed have remonstrated, then such annexation shall not take place, 
unless the court shall find from the evidence that the prosperity of 
such city and territory w411 be materially retarded and the safety of 
the inhabitants and property thereof endangered without such annex- 
ation. In case the court shall so find the annexation shall take place. 
Notwithstanding the remonstrances such decision shall be final, and 
no appeal shall lie therefrom; nor shall the law^s touching change of 
venue from the county apply, but changes of venue from the judge 
may be had as in other cases. Costs shall follow^ judgment. Pending 
such appeal, and during the time wdthin w4iich such appeal may be 
taken, such territory sought to be annexed shall not be deemed a part 
of the annexing city. Upon the determination of such appeal, the 
judgment shall particularly describe the ordinance upon which the 
appeal is based; and it shall be the duty of the county clerk to forth- 
with deliver a certified copy of such judgment to the clerk of such 
city, who shall record the same in the ordinance record, and make a 
cross reference to the page thereof upon the margin where such 
original ordinance was recorded. In case the decision is adverse to 
such annexation, no further annexation proceedings for such territory 
shall be lawful for two years after the rendition of such judgments 
R. S. 1894, § 4092. 

See note, ante, § 419. 

729. Parts of cities or towns not to be annexed, — 89. No such an- 
nexation shall be made, under the foregoing sections, of any part of 
the territory of any other incorporated town or city, but only of the 
v/hole corporate territory thereof. In case of such annexation, the 
two corporations shall be deemed to be consolidated, and the consoli- 
dated corporation shall be bound for all the debts and liabilities, and 
shall be the owners of all corporate property, franchises and rights of 



549 EXECUTIVE AND JUDICIAL OFFICERS AND DEPARTMENTS. § 730 

every nature, including all taxes of both of such municipal corpora- 
tions. R. S. 1894, § 4093. 

730. Disaimexatioii of territory. — 40. The common council shall 
have power by ordinance to disannex and throw out any territory 
forming a part of the corporate limits of such city, upon a petition of 
a majority of the freeholders resident therein; but such disannexation 
shall not relieve such territory from being taxed for the purpose of 
paying any cit}^ indebtedness, existing before such disannexation, nor 
the interest thereon, nor any new securities issued to refund such in- 
debtedness, nor the interest thereon. R. S. 1894, § 4094. 



ARTICLE 3.— EXECUTIVE AND JUDICIAL OFFICERS AND DEPARTMENTS. 



SEC. SEC. 

731 . Executive and administrative author- 761 . 

ity. 762. 

732. Mayor — Election— Qualification — 763. 

Term— City clerk. 764. 

733. Vacancy in office of mayor. 765. 

734. Acting mayor. 766. 

735. Duties of mayor— Bond. 767. 

736. Mayor's court — Fees — Absence — 768. 

AVho to act. 

737. Suits by city. 769. 

738. Suits against corporations. 

739. Actions on ordinances. 770. 

740. Commitment for failure to pay judg- 771. 

ment. 772. 

741. Salary of mayor. 773. 

742. City clerk— Duties — Salary — Deputy. 

743. Departments established. 774. 

744. Qualifications of heads of depart- 775. 

ments — Report of moneys received. 776. 

745. Estimates by heads of departments. 777. 

746. Contracts— When bind city. 778. 
747 Issuing illegal warrants— Penalty. 779. 

748. Comptroller — Appointment — Salary 780. 

—Deputy. 781. 

749. Duties of comptroller. 782. 

750. City attorney — Appointment — Bond 783. 

— Salary — Duties . 

751. Board of public works — Appointment 784. 

— Salary — Bonds. 785. 

752. Engineer — Appointment — Salary. 786. 

753. Duties and powers of board. 787. 

754. Contracts for work. 

755. Letting contracts— Notice— Bids— 788. 

Collusion, etc. 

756. Expenses of board — Payment. 789. 

757. Appropriation of property. 790. 

758. Roll of owners of property. 

759. Award of damages— Notice. 791. 

760. Insane persons and infants. 



Remonstrance — Appeal. 

Appeal — How taken — Judgment. 

Assessment of benefits — Lien. 

Benefits — When due — Collection. 

Payment by city of damages. 

Damages —Payment. 

Order for street improvement. 

Land or lots assessed — Cost — How 
estimated — Liability of city. 

Lien— Street and alley crossings — 
Deductions. 

Payment by installments. 

Assessment roll. 

Final estimate — Notice — Hearing. 

Agreement of persons paying by in- 
stallments. 

Duty of treasurer — Account of fund. 

Street improvement bonds. 

Failure to pay installments — Effect. 

Levees, viaducts and tunnels. 

Assessments — Liens — Collection. 

Sewers and drains. 

Local sewers. 

Cost— How paid. 

Assessments — Collection . 

Contracts for sprinkling and sweep- 
ing. 

Cost — Assessment. 

Assessments — When payable. 

Lamp posts — Contracts for. 

Board of public safety — Appointment 
— Salary. 

Rules— Quorum — Chairman — Rec- 
ord. 

Duties of board. 

Firemen and police — Teraas — Re- 
moval . 

Punishment of firemen and police- 
men. 



SEC. 




SEC. 


792. 


Powers of policemen. 


810. 


793. 


Duty as to prisoners. 


811. 


794. 


Additional policemen. 


812. 


795. 


Oaths— Who may administer. 


813. 


796. 


Duties of policemen. 


814. 


797. 


Gaming houses. 


815. 


798. 


Arrest— Duty on making. 


816. 


799. 


Bonds of appointees. 


817. 


800. 


Insurance fund. 


818. 


801. 


City treasurer— Office abolished. 


819. 


802. 


Treasurer of county to be city treas- 






urer. 


820. 


803. 


Duties of treasurer. 


821. 


804. 


Settlements by treasurer— Collection 


822. 




of taxes. 


823. 


805. 


Payment of money into treasury. 


824. 


806. 


City treasurer to deliver precepts. 


825. 


807. 


Assessments for taxation. 




808. 


Duty of county auditor. 


826. 


809. 


Levy of taxes— Limit. 





§ 731 CITIES OF MORE THAN THIRTY-FIVE THOUSAND. 550 



Auditor to put taxes on duplicate. 
Notice by county treasurer. 
Collection of taxes— Delinquency. 
Delinquent tax, collection. 
Settlement by county treasurer. 
Payment of school taxes. 
Dehnquent list, collection. 
Settlement for delinquent taxes. 
Payment of school delinquency. 
Delinquent list of lands — Taxes 

charged. 
Sale of delinquent lots. 
Payment of bids — Guaranty. 
Laws applicable to sales. 
School and library tax laws revived. 
Salary of county auditor. 
Board of health and charities — x\p- 

pointment — Salaries — Duties . 
Preparation of ordinances. 



EXECUTIVE. 

731. Executive and administrative authority, — 41. The executive 
and administrative authority of such city shall be vested in a mayor, 
city clerk, the departments hereinafter created, or referred to, and such 
other officers as may hereinafter be appointed by virtue of this act. 
R. S. 1894, § 4095. 

For powers and duties of executive and administrative officers under the general law 

of 1867, see ante, § 59, et seq., and notes. 

732. Mayor — Election — Qualification — Term — City clerk, — 42. 

There shall be chosen at each general election, hereinbefore provided 
for, by the voters of said city, a mayor, a city clerk, each of whose 
terms of office shall commence at 12 o'clock, noon, on the Thursday 
next after their election, and shall continue two years, or until his re- 
spective successor is elected and qualified, except as herein otherwise 
provided. No person shall be qualified for the office of mayor who 
has not been a citizen and resident of such city for three years previ- 
ous to his election, and who is not at least twenty-five (25) years of 
age. R. S. 1894, § 4096. 

733. Vacancy in office of mayor. — 43. In case of a vacancy 
occurring in the office of mayor, from death, resignation or other- 
wise, more than six months before a general election shall occur, 
it shall be the duty of the acting mayor to take official notice thereof, 
and within ten (10) days thereafter issue his proclamation calling for 
a special election by the voters of such city, at a date therein named, 
not later than forty (40) days, nor earlier than twenty-five (25) days 
after the issuance of such proclamation, to fill such vacancy or vacan- 



551 EXECUTIVE AND JUDICIAL OFFICERS AND DEPARTMENTS. § 734 

cies. Such special election shall be governed by the laws and regu- 
lations governing general elections. R. S. 1894, § 4097. 

734. Acting mayor. — 44. In case of a vacancy in the office of 
mayor from death, resignation or otherwise, or in case of disability on 
the part of the mayor to perform the duties of his office, the city comp- 
troller shall perform the duties of acting mayor and be entitled to his 
salary for the time being: Provided, That during the time of perform- 
ing such duties of acting mayor he shall not perform any duties as 
comptroller. R. S. 1894, § 4098. 

735. Duties of mayor- — Bond. — 45. It shall be the duty of the 
mayor, to cause the ordinances of the city and the laws of the state to 
be executed and enforced; to communicate to the council at least once a 
year, a statement of the finances and general condition of city affairs, 
and also such information in relation to the same as he may be called 
upon to furnish from time to time; to make such recommendations 
in writing, by message to the council, as he may deem expedient; to 
call special meetings of the council, when he shall deem the same expe- 
dient; to perform such duties of an executive or administrative character 
as may be prescribed by law, and he shall be responsible for the good 
order and efficient government of the city; to fill, by appointment, 
vacancies for unexpired terms in all the elective offices, except that of 
mayor; to appoint the heads of departments, as hereinafter created, 
who shall hold office until their successors are appointed and qualified: 
Provided, That the mayor may at any time suspend or remove from 
office any or all of such persons, whether appointed by him or his 
predecessors, by notifying them to that effect and sending a message 
to the council stating in writing his reasons for such removal; to sign 
all bonds, deeds and written contracts of the corporation, and all 
licenses issued pursuant to law by any department, and to revoke or 
suspend any such license; to approve or disapprove, in writing, within 
ten (10) days after receiving the same, every ordinance or resolution 
of the council, and he shall transmit to the body in which the same 
originated within such time a message announcing such approval or 
veto; in case of a veto, he shall state in writing his reasons therefor, 
and such resolution or ordinance shall not become operative unless 
the same is passed over such veto, by a two-thirds vote of the common 
council: Provided, That in ordinances appropriating money or levy- 
ing a tax or taxes, the mayor may approve or disapprove of the sep- 
arate items of such appropriation or levy. In case of disapproval of 
any item or items, and approval of the remainder of the ordinance, 
so much of the same as it [is] approved shall be law and operative, and 
those items which are disapproved shall not become law and operative 
unless passed over his veto by a two-thirds vote as above provided. 
To call together the heads of departments, except of assessment and 
collection, for consultation and advice upon the affairs of the city at 
least once a month, and to call on the heads of all departments for 
reports from the same, which it shall be their duty to prepare and 
submit in writing. Records shall be kept of such meetings as above 



§ 735 CITIES OF MOKE THAN THIRTY-FIVE THOUSAND. 552 

provided for, and rules and regulations sliall be adopted thereat for 
the administration of the affairs of the city departments, not inconsist- 
ent with any law or ordinance, which regulations shall prescribe a 
common and systematic method of ascertaining the comparative fitness 
of applicants for office, position and promotion, and of selecting, ap- 
pointing and promoting those found to be best fitted; to appoint, as 
often as he thinks proper, three competent persons to examine with- 
out notice the amounts [accounts] of any department, officer or em- 
ploye, and the money, securities and property of the city in their 
possession or charge, and report the result of such investigation. He 
shall be the conservator of the peace, and as such shall have within 
the city limits the powers conferred upon justices of the peace, for 
that purpose, and sliall perform such other duties as the nature of his 
office and the interests of the city shall require. He may take and 
certify under the seal of the city the proof and acknowledgment of 
deeds and other instruments in writing which shall be good in any 
court in this state without further authentication; he may also take 
and certify depositions and affidavits, and the same shall have a like 
force and effect as if taken by justices of the peace; he shall hold a 
city court every day, Sunday excepted, at a place to be furnished by 
the common council. While sitting as such court he shall have exclusive 
jurisdiction of all prosecutions for violation of the by-laws and ordi- 
nances of the city; he shall have within the limits of said city the 
jurisdiction and powers of a justice of the peace in all matters civil 
and criminal arising under the laws of this state, and for crimes and 
misdemeanors his jurisdiction shall be co-extensive with the county in 
which such city is situated: Provided, That in trials before him he 
shall have power to adjudge imprisonment with hard labor as a part 
of his sentence not exceeding thirty days in the city or county prison. 
In all actions in the city judges' or mayor's court either party may 
have a trial by jury and a change of venue to a justice of the peace in 
such city, and an appeal to a court of competent jurisdiction un- 
der the same restrictions and in the same manner as from justices' 
court, except in cases where the mayor has exclusive jurisdiction no 
change of venue shall be allowed. The same rules of pleading and 
practice shall be observed in the city judges' or mayor's court that are 
in the justices' court. The mayor shall give bond, payable to the 
state of Indiana, in any penal sum not less than three thousand dol- 
lars, to be approved by the clerk of the circuit court, with freehold 
security, conditioned for the faithful performance as mayor and all 
other duties herein required, and file the same with the clerk of the 
circuit court within the time directed by law for justices of the peace. 
All [fines and penalties collected by him shall be paid to the comp- 
troller of the city within one month after the same shall have been 
received by him in the kind of a fund so received, except when other- 
wise directed by acts prescribing the duties and powers of justices of 
the peace, in which case he shall pay all fines in the same manner 



:;t^ 



736 

and under the same restriction that justices of the peace are required 
to do.] R. S. 1894, §4099. 

See note, ante, § 426, 

For powers and duties of mayor under the general law of 1867, see ante, § 80 and 
notes. 

For city court, under said general law, see ante^ § 262 et seq. and notes. 

736. Mayor's court — Fees — Absence — Who to act. — 46. The mayor 
or city judge shall keep a docket as justices of the peace do, and in 
case of the absence of such mayor or city judge, for the space of five 
days or more, or of inability in consequence of sickness or other 
causes, for a like period, shall, prior to such departure in the first 
case and at the expiration of five days. in the last case (if his inability 
continue) deposit, or cause to be deposited, his docket with any justice 
of the peace within said city, and such justice shall, during such ab- 
sence or inability, be vested with, and exercise all the judicial powers 
and authority of said mayor or city judge, and be entitled to his fees 
and emoluments therefor, the mayor or city judge shall be entitled to 
the same fees as justices of the peace. In case of a vacancy in the 
ofEce of mayor or city judge, by death, resignation, or otherwise, the 
council shall cause his docket to be placed in the hands of some jus- 
tice of the peace in said city, who shall act as, and have all the judicial 
powers and authority of such mayor or city judge, until the vacancy 
can be supplied, as provided by lav/, and the official bonds of such 
justice shall embrace all his official acts in such capacity: Provided, 
That all fees herein provided for the mayor or city judge shall be paid 
to such mayor or city judge for the use and benefit of such city, which 
fees the mayor or city judge shall pay into the comptroller's office, 
once in every three months, for the benefit of the general funds of the 
city. The mayor or city judge shall draw no salary from the city 
treasury until he shall have filed with the comptroller a relinquish- 
ment and transfer to such citv of all taxable fees allowed him by law 
in all cases. R. S. 1894, § 4100. 

737. Suits by city. — 47. Whenever any suit shall be instituted by 
such city it shall not be necessary to aver its corporate organization, 
or the publication of its by-laws or ordinances, unless the same is con- 
tradicted by affidavit. R. S. 1894, § 4101. 

See notes, ante, §§ 82-84. 

738. Suits against corporations. — 48. In all prosecutions against 
an}^ railroad or other incorporated company for the violation of any 
ordinance of the common council of any city, a summons may issue 
against the company and may be served on the president, superin- 
tendent, secretary, treasurer, station agent or general agent, and upon 
the trial of the cause, judgment may be rendered against the railroad 
company for such penalty as may be adjudged, or the conductors or 
other agents of the company guilty of the violation, may be arrested 
by warrant, and may be proceeded against personallv as in other 
cases. R. S. 1894, M102. 



§ 739 CITIES OF MORE THAN THIRTY-FIVE THOUSAND. 554 

739. Actions on ordinances. — 49. All actions brought to recover 
any penalty or forfeiture incurred under this act or ordinance made in 
pursuance thereof, shall be brought in the corporate name of such 
city, the process in every such action shall be a v/arrant and the per- 
son named in such warrant shall be arrested and retained in custody 
or under reasonable recognizance until the next sitting of the city 
court, and it shall not be necessary to file with the affidavit or com- 
plaint a copy of the ordinance, or section thereof, charged to have 
been violated, but it shall be sufficient to recite in the affidavit or 
complaint the number of the section charged to have been violated, 
with the date of its adoption; nor shall it be necessary to copy any 
part of the affidavit or complaint or other pleadings in the record of 
the cause: Provided, That the mayor shall note upon his docket the 
parties to the action, the title to the cause, the filing of the complaint 
or affidavit, the issuing and return of process and the judgment and 
proceedings had in the cause, and the satisfaction of judgment when 
paid. R. S. 1894, § 4103. 

See ante, §§ 82 and 84 and notes. 

740. Commitment for failure to pay judgment. — 50. If the penalty 
or forfeiture in which judgment is obtained is not paid or replevied, 
the defendant may be committed, for any period not exceeding thirty 
days, to the work-house of such city, or if such city has no work-house 
then to the county prison of the county in which such city is situated, 
and in the latter case it shall be the duty of the person having charge 
of such prison to receive such defendant, and obey the judgment of 
the city judge's or mayor's court in reference to him or her, and in 
default of payment or replevy of such judgment and costs the defend- 
ant, unless a female, may be adjudged and required to pay the same 
by manual labor in said work-house or county prison, or on the street 
or other public works of such city, under the control of the depart- 
ment of public works of such city, for which labor such defendant 
shall be allowed on such judgment and costs seventy-five cents per 
day. It shall be the duty of said department of public works, or such 
officer as the department of public works may direct, to work such de- 
fendant not less than six nor more than ten hours per day, according 
to the season, and each evening return him to the custody of the 
keeper of such prison or work-house. Upon the full payment, as 
aforesaid, of the judgment and costs, such defendant shall be fully 
discharged. And such department of public works is hereby author- 
ized and required to perform all the duties herein prescribed and to 
use all proper means thereto; and the common council is hereby vested 
with full authority to pass by-laws and ordinances for the purpose of 
compelling the enforcement of such manual labor by such defendant, 
by the use of sufficient force and means as they may deem right and 
proper. If any prisoner is required to work upon the streets or other 
public works of the city as a part of his punishment, then such city 
shall pay to the county the fees now allowed to sheriff for boarding 



I 



555 EXECUTIVE AND JUDICIAL OFFICEKS AND DEPARTMENTS. § 741 

prisoners, while such prisoner is confined in the county prison or jail, 
and such defendant may, at any time, replevy and pay such judgment 
and costs; and in case he has performed labor under such judgment, 
he shall be entitled to a credit for the same amount of labor performed, 
and the balance may be paid or replevied as aforesaid. R. S. 1894, 
§ 4104. 

741. Salary of mayor. — 51. The mayor of such city shall be paid 
an annual salary of twenty-five hundred dollars ($2,500), which may 
be increased by ordinance to any amount not exceeding three thou- 
sand dollars ($3,000), and he shall receive no other compensation 
whatever. R. S. 1894, § 4105. 

742. City clerk — Duties— Salary — Deputy. — 52. The clerk of such 
city shall be the clerk of the common council and may appoint one or 
more deputies at his own expense to assist him. He shall keep the 
records of the proceedings of said body. Said city clerk shall have 
charge of all the papers relating to the business of said common council, 
shall prepare and keep an ordinance book, as elsewhere provided in this 
act, shall have charge of all documents and books, the keeping of which 
may be intrusted to him by statute or ordinance, shall keep the city 
seal, and shall perform all other duties prescribed by law or incident 
to his office. He shall receive a salary at the rate of fifteen hundred 
dollars per year, which may be increased by ordinance to a rate not 
exceeding two thousand dollars ($2,000) for all such services, and shall 
not receive any other compensation, fee or perquisite, except for furnish- 
ing certified copies of the records in his possession, which shall be re- 
ceived as evidence in any proceeding, and for which the said clerk shall 
receive like fees as paid to the county clerks for similar services. 
Said clerk shall deliver over to his successor, as soon as tjie same shall 
have qualified for office, all documents, books and belongings of 
his office. The city clerk ma}^ be authorized by the common coun- 
cil to employ a deputy at a salary not to exceed one thousand dol- 
lars ($1,000) per year: Provided, That it is shown to the satisfac- 
tion of the council that such clerk is necessary. R. S. 1894, 
§ 4106. 

For duties of clerk under general law of 1867, see ante, § 86 and notes. 

DEPARTMENTS. 

743. Departments established. — 53. The following executive de- 
partments are hereby established in such city: 

a. Department of finance. 

.6. Department of law. 

c. Department of public works. 

d. Department of public safety. 

e. Department of assessment and collection. 
/. Department of public health and charities. 

No other executive or administrative departments shall be estab- 



§ 744 CITIES OF MORE THAN THIRTY-FIVE THOUSAND. 556 

lished in such city. Subordinate officers and employes not herein pro- 
vided for shall be appointed by the heads of their respective depart- 
ments. Each department shall have power to prescribe rules and 
regulations not inconsistent with any statute or ordinance, or regula- 
tion established pursuant to section 45 of this act, for its own gov- 
ernment, regulating the conduct of its officers, clerks and employes, 
the distribution and performance of its business, and preservation of 
books, records, paper and property under its control. Each depart- 
ment shall promptly furnish to the mayor or the common council any 
information which may be called for in relation to its affairs. The 
heads of said departments, except the department of assessment and 
collection, shall be appointed by the mayor. The departments of 
public works, public safety and public health and charities shall have 
power to designate and appoint, and at pleasure to remove, a clerk for 
said departments, who shall keep a continuous record or minute of all 
official business in said several departments, and whose salary shall 
not exceed one thousand dollars ($1,000) per annum, to be fixed 
by the heads of such departments. In case such heads of such de- 
partments fail to agree upon and make such appointment within 
five (5) days from the commencement of their terms of office, it shall 
be the duty of the mayor to designate and appoint such clerk, and the 
clerk so appointed by the mayor may be by him removed at pleasure, 
but not by such departments. In the event that one clerk shall not 
be sufficient to do the work of all such departments, the council may 
authorize the appointment of such additional clerks as may be neces- 
sary, not exceeding one for each of such departments: Provided, That 
after the expiration of thirty (30) days from the time when a new offi- 
cer or officers shall have been appointed to the head of a department, 
he or they may remove clerks or assistants only upon filing in writing 
with the city clerk the reasons for any such removal, except that fore- 
men, inspectors and laborers temporarily emploj^ed under the depart- 
ment of public works may be removed at any time at the pleasure of 
the department. All officers shall give bond as required by ordinance, 
except when otherwise provided herein. R. S. 1894, § 4107. 

See note, ante, §429. 

744. Qualifications of heads of departments — Report of moneys 
received. — 54. No person shall be appointed as the head of any de- 
partment, or as a member of any board herein provided for, unless he 
shall have been a resident and elector of such city for three years im- 
mediately prior thereto. No person who is paid a salary for his serv- 
ices from the city treasury shall receive to or for his owm use, directly 
or indirectly, any fees, perquisites of office, commissions, percentages, 
or money paid to him in his official capacity, unless specially author- 
ized in this act; but all fees, perquisites, commissions, percentages, 
and moneys so paid and received by or for any such officer or person 
shall be the property of the city, and shall be paid by him into the 
city treasury; and all moneys received for licenses or permits shall be 



557 EXECUTIVE AND JUDICIAL OFFICERS AND DEPARTMENTS. § 745 

paid into the treasury weekly without deduction by the officer or de- 
partment receiving them, and every such officer or person who shall 
receive any fees, perquisites, percentages, or other moneys w^hich be- 
long to the city, and should be so paid into its treasury, shall, before 
he shall be entitled to receive or be paid his salary, make, under oath, 
a detailed statement and return to the head of the department of 
finance in such form as he may prescribe, showing the aggregate 
amount of all moneys received by him since the last preceding 
statement and return, and shall produce a receipt showing the pay- 
ment of such sum to the treasurer. The comptroller may require any 
such officer or person to make such statement and return to him, if it 
be not made as herein provided, and examine such officer or person 
under oath touching the matter herein provided for. R. S. 1894, 
§ 4108. 

745. Estiiiiates by lieads of departmeiits. — 55. It shall be the duty 
of each executive department, before the commencement of each fiscal 
year, to submit to the joint meeting of the heads of the departments 
and of the various boards hereinbefore provided for in section 45, an 
estimate of the amount of money required for their respective depart- 
ments for the ensuing fiscal year, stating with as great particularity as 
possible each item thereof. The comptroller shall at the same time 
submit a statement or estimate of city expenditures for other purposes, 
for the ensuing year, over and above the moneys proposed to be used 
by the various executive departments, giving with as great particu- 
larity as possible each item thereof. After such meeting and reports 
and consultation, the city comptroller shall thereupon proceed to re- 
vise such estimates for the ensuing year, and the comptroller shall then 
prepare a report to the mayor of the various estimated amounts re- 
quired in said comptroller's opinion for each executive department, 
and for other city expenses, together with an estimate of the necessary 
per cent, of taxes to be levied. The mayor shall at the next meeting 
of the common council present such report with such recommendations 
as he may see fit. It shall be the duty of the committee of finance of 
said common council thereupon to prepare an ordinance fixing the rate of 
taxation for the ensuing year, and also an ordinance making appro- 
priations by items for the use of the various executive departments 
and other city purposes for the ensuing year. Said ordinance may 
reduce any estimated item for any executive department, from the 
figures submitted in the report of the city comptroller, but shall not 
increase the same unless recommended by the mayor. Such appro- 
priation ordinance shall thereafter be promptly acted upon by the 
common council. If at any time after the passage of such ordinance 
an emergency shall arise for further appropriations for the use of any 
department, as certified by such department as hereinbefore provided, 
or other purposes during the year, such additional appropriation may 
be made on the recommendation of the comptroller bv a two-thirds 
vote of the council. R. S. 1894, § 4109. 

746. Contracts — Wiieu bind city. — 56. No executive department. 



§ 747 CITIES OF MORE THAN THIRTY-FIVE THOUSAND. 558 

officer or employe thereof, shall have power to bind such cit}^ by any 
contract, agreement, or in any other way, to any extent beyond the 
amount [of money] at the time already appropriated by ordinance for 
the purpose of such department, and all contracts and agreements, 
express or implied, and all obligations of any and every sort, beyond 
such existing appropriations, are declared to be absolutely void. R. S. 
1894, § 410. 
See note, ante, § 432. 

747. Issuing illegal warrants — Penalty.— 57. Any city official who 

shall issue any bond, certificate or warrant for the payment of money 
which shall purport to be an obligation of such city, and be beyond 
the unexpended balance of any appropriation made for such purpose, 
or who shall attempt to bind such city by any contract, agreement, or 
in any other way, to any extent beyond the amount of money at the 
time already appropriated by ordinance for such purpose, and remain- 
ing at the time unexpended, shall be liable on his official bond to any 
person injured thereb}^, and shall be fined in any sum not more than 
one thousand dollars ($1,000), and imprisoned in the county jail not 
more than six months, either, or both. R. S. 1894, § 4111. 

Department of Finance. 

748. Comptroller — Appointment — Salary — Deputy. — 58. The city 
comptroller shall be at the head of the department of finance, and shall 
have an appropriate seal. He shall be appointed by the mayor. His 
salary shall be two thousand dollars ($2,000), which ma}- be increased 
by ordinance to a sum not exceeding three thousand dollars ($3,000) 
per year. The comptroller may appoint a deputy, for whose acts he 
shall be responsible, having an annual salary of eight hundred dol- 
lars ($800), which may be increased by ordinance to a sum not ex- 
ceeding one thousand dollars ($1,000). The comptroller and his dep- 
uty are hereby authorized and empowered to administer oaths in all 
matters relating to his office. R. S. 1894, § 4112. 

749. Duties of comptroller.— 59. It shall be the duty of the comp- 
troller to prescribe the form of reports and accounts to be rendered 
to his department, and to have the inspection and revision of the ac- 
counts of all other departments and trusts. To audit the accounts 
of the several departments and trusts, and all other accounts in 
which the city is concerned, and submit annually to the council at 
the end of each fiscal year a report of the accounts of the city, under 
his oath, exhibiting the revenues, receipts and expenditures, the 
sources from which the revenues and funds are derived, w^hich report 
shall be published in pamphlet form. To keep separate accounts for 
each specific item or appropriation made by the council to each de. 
partrnent, and require all warrants to state specifically against which 
of said items the warrant is drawn. Each account shall be accom- 
panied by a statement in detail, in separate columns of the several 



559 EXECUTIVE AND JUDICIAL OFFICERS AND DEPARTMENTS. § 749 

appropria-tions, the amount drawn on each appropriation, the unpaid 
contracts charged against it, and the balance standing to the credit of 
the same. He shall not suffer any appropriation to be overdrawn or 
the appropriation for one item of expense to be drawn upon for any 
other purpose, or by any department other than that for which the 
appropriation was specifically made, except on transfers authorized by 
ordinances. He shall sign and issue all orders for money upon the 
cit}^ treasury' , and no moneys shall be paid out by the treasurer ex- 
cept upon such order. In case of stated salaries fixed by law or ordi- 
nance, said comptroller shall issue orders therefor, but in all cases 
he shall require a warrant to be presented to him from the head 
of the department under whose supervision the obligation has been 
incurred, or if not so incurred, then such warrant shall be drawn by 
the mayor. In no case shall the comptroller draw an order on the 
treasury unless there be at the time money in the treasury properly 
applicable to the payment thereof. The expenditures of the comp- 
troller must be approved in writing by the mayor before any order 
is drawn therefor. To have charge of all books or papers pertaining 
to his department or entrusted to the same, and to turn the same over 
to his successor. If any warrant presented to the comptroller contain 
an item for which no appropriation has been made, or there shall not 
be a sufficient balance of the proper fund for the payment thereof, 
or which for any cause should not be approved, he shall not ap- 
prove the same, and shall notify the proper department of the facts. 
And if the comptroller shall approve any warrant contrary to the 
provisions hereof, he shall be individually liable for the amount of 
the same to the holder thereof, and to the extent of his bond; his 
sureties shall also be liable. Whenever a warrant shall be presented to 
him, he shall have power to require evidence that the amount claimed 
is justly due, and for that purpose may summon before him any officer, 
agent or emplo3^e of any department of the city, or any other person 
and examine him upon oath relative to such warrant or claim. Such 
persons so summoned shall be subject to the provisions of this act, touch- 
ing the examination of persons by the council, said comptroller having 
the same power as such body. To perform the duties elsewhere defined 
by this act with regard to the negotiation and sale of city securities, 
and to keep a register of all bonds of the city and the transfers thereof 
and an account of all outstanding securities. To manage and direct 
the finances and accounts of the city, and to make investments of city 
funds, subject to the ordinances of the common council. To issue all 
city licenses of every nature whatever upon the presentation and sur- 
render of the receipt of the treasurer showing the payment of the li- 
cense fee and to collect comptroller's fees as fixed by ordinance. Said 
comptroller shall once each week pay to the treasurer the amounts 
collected by his department for the preceding week, specifying tlie 
source from which they have been derived, and the comptroller shall 
relinquish, in writing, to such city all fees which have been or may 
be collected. To prescribe the forms and methods of keeping and ren- 



§ 750 CITIES OF MORE THAN THIRTY-FIVE THOUSAND. 560 

dering all city accounts and pay-rolls to be used in the several depart- 
ments and offices, the manner in which all salaries shall be drawn, 
and the mode by which all creditors, officers and employes shall 
be paid. All salaries shall be payable once in three months. To 
furnish the treasurer statements of all appropriations made by the 
council before any warrant shall be drawn on account of the same, and 
to notify the mayor in case of any neglect or failure on the part of 
any officer or officers authorized to collect moneys for or on account 
of the city, in the performance of such duty or in depositing their 
collections in the treasury; and thereupon the mayor shall suspend 
such officer or officers, and proceed against them by an action upon 
their official bond or otherwise, as he may deem best. To carefully 
examine the tax duplicates in the hands of the county auditor and county 
treasurer, and see that they are properly made out so far as the same 
relate to city taxes, and to see that the assessment of property is prop- 
erly made out by the assessor so far as the same relates to city taxes, 
and to notify the county auditor of any omitted property that may 
come to his knowledge. To examine the accounts of the treasurer 
and make an annual settlement with him, charging to such treas- 
urer the amount of all taxes and other assessments, entered upon said 
duplicate, in favor of such city, together with all penalties, interest 
and other sums in addition to the amount of such tax, which it may 
be the duty, according to law, of such treasurer to collect in behalf 
of the city, and to credit him with all disbursements made on ac- 
count of lawful orders drawn on him by such comptroller. To 
draw orders on the treasury for miscellaneous city expenditures, 
not made under the direction of any executive department, nor 
specifically fixed by law as in the case of salaries: Provided, That 
no such order shall be drawn by such comptroller, unless the money 
properly applicable thereto has been appropriated by ordinance, and 
remains unexpended, and no liability shall accrue against such city, 
nor can any officer, agent or employe of such city bind the same di- 
rectly or indirectly for any such miscellaneous expense without the 
written approval of the comptroller previously obtained and filed in the 
comptroller's office, nor in any case beyond the appropriation already 
made and remaining unexpended and available for such purposes. All 
obligations in contravention of the preceding provisions are declared to 
be void for all purposes. R. S. 1894, § 4113. 

Department of Law. 

750, City attorney —Appointment — Bond — Salary — Duties. — 60. 

The head of the department of law shall be the attorney and counsel of 
such city. He shall be appointed by the mayor. He is to give a bond 
in the sum of five thousand dollars ($5,000), to be approved by the 
comptroller. He shall receive an annual salary of not less than fifteen 
hundred dollars ($1,500) nor more than twenty-five hundred 
($2,500) in full for all services, said salary to be fixed by the 



561 EXECUTIVE AND JUDICIAL OFFICERS AND DEPARTMENTS. § 751 

common council. He shall have the management, charge and con- 
trol of the law business of such city and for each branch of its gov- 
ernment, and prosecute all violators of city ordinances; shall draw up 
ordinances, leases, deeds, contracts or other legal papers for such city 
and its various departments when requested to do so by the proper 
officer, shall be the custodian of the papers properly appertaining to 
his office, and shall turn the same over to his successor in office. He 
shall conduct all legal proceedings authorized by this act, and all ap- 
peals of every nature whatsoever in which such city or the public 
shall have an interest; shall make all searches and abstracts of title 
required in opening, widening or changing any street, alley or public 
place. All fees, perquisites or other emoluments received by him, 
or payable to him, including prosecuting violators of city ordinances, 
shall be collected by him for and in behalf of such city, a careful ac- 
count kept thereof, and the same paid into the city treasury once a week, 
said payment to be made under oath as to the amount received. Such 
attorney shall use all diligence to collect costs due such city, and all 
all other fees or recoveries falling within the purview of his official du- 
ties. He may employ a deputy, and also such other assistants as he 
may be authorized to do by ordinance, and not other, and shall 
promptly commence all proceedings necessary or advisable for the 
protection or enforcement of the rights of such city or the public. He 
shall report to the mayor in writing all such matters as he may deem 
important, and to the department of finance all judgments for which 
such city shall be liable. No judgment against such city shall be en- 
forceable except out of moneys appropriated for that purpose, but the 
common council and mayor may be compelled by mandamus proceed- 
ings to levy, collect and appropriate the necessary sum for the pay- 
ment of any judgment, in which case such legislative bodies may be 
sued collectively by their legal name, service of process being had on any 
member thereof, and all members shall be bound by such judgment. 
R. S. 1894, § 4114. 

Powers and duties of city attorney. — For appointment, removal, etc., under gen- 
eral law of 1867, see ante, §§ 69, 59«, 96 and notes. 

Authority of city attorney. — A city attorney who is charged by statute with the duty 
to prosecute and defend all suits for and against the city in several controversies involv- 
ing the same issues may bind the city by an agreement that all the controversies shall 
abide the result of one test case. Bank of Commerce v. City of Louisville, 88 Fed. 
Eep. 398. 

Department of Public Works. 

751. Board of public works — Appointment — Salary — Bonds. — 61. 

The department of public works shall have for its head a board of 
three members, to be appointed by the mayor, not more than two of 
whom shall be of the same political party. The mayor shall have 
the power at any time to remove any member of said board and to fill, 
by appointment, any vacancy occurring in said office. The person 

CiT. AND To.— 36 



§ 752 CITIES OF MORE THAN THIRTY-FIVE THOUSAND. 562 

appointed to fill a vacancy shall hold the office, subject to removal by 
the mayor, until his successor is appointed by the mayor. Each mem- 
ber of said board shall receive a salary at the rate of one thousand 
dollars ($1,000) per year, which may be increased by ordinance to a 
rate not exceeding fifteen hundred dollars ($1,500), and give bonds with 
sureties in the sum of five thousand dollars ($5,000), to be approved 
bv the comptroller. Said board shall choose a chairman from its own 
number. No member of said board shall have any authority to act 
on behalf of the same, except pursuant to an order of the board, regu- 
larly made at a meeting of the same, at which meeting a majority of 
said board shall have been present. All actions of the board shall be 
recorded by the clerk thereof, together with a record of the vote of each 
member, where the vote is not unanimous. The board shall make 
rules governing the time and place for holding regular and called 
meetings, and for giving notice thereof. R. S. 1894, § 4115. 
Rules. — See note, ante, § 438. 

752, Engineer — Appoiutment — Salary. — 62. The mayor shall also 
appoint a city civil engineer, who shall be subject to the orders and 
directions of said board, and receive a salary of fourteen hundred dol- 
lars ($1,400) per year, which may be increased by ordinance not to 
exceed twenty-five hundred dollars per year. R. S. 1894, § 4116. 

For powers and duties of city engineer under general law of 1867. see ante, § 91 and 
notes; Hirth v. City of Indianapolis, 18 App. 673. 

753. Duties and powers of board. — 63. The board of public works 
shall have the power to condemn, hire or purchase any real estate or 
personal property needed by such city for any public purpose, except 
when a different provision for purchase is made by this act. Said 
board may cause buildings, structures or other things in the way of 
any street, sewer or other public improvement, to be taken down 
removed and appropriated upon the payment of damages as herein 
provided. Said board may enter upon, seize, appropriate and con- 
demn the right of way, yards, depot, grounds or other lands of any 
railroad company, person or corporation, passing through such city, 
for street, sev\'er or alley purposes, whether such lands be occupied or 
not, upon the payment of damages as herein provided. Promded, 
That when a sum of more than two thousand ($2,000) dollars is re- 
quired to be paid for the condemnation, hire or purchase of any real 
estate or personal property, the same shall not take place unless the 
condemnation, hire or purchase is specifically authorized by ordinance. 
To have charge of all property, real and personal, belonging to such 
city, and to care for the same, except where the custody of such prop- 
erty is by this act placed under different control. To design, order, 
contract for and execute the improvement or repair of any property j. 
real or personal, belonging to or used by such city, and the erection of 
ail buildings for public purposes, together with all fire cisterns, pounds, 
and other structures of any nature needed for any public purpose. To 



563 EXECUTIVE AND JUDICIAL OFFICERS AND DEPARTMENTS. § 753 

approve the platting of all streets and alleys in any addition to such city, 
or within the corporate limits thereof; to require the same to correspond 
in width, and be coterminus with the adjoining streets and alleys. No 
plat shall be entitled to record in the recorder's office in the county in 
which such city is located without such written approval endorsed 
thereon. To lay out, open, change, vacate, and to fix or change the 
grade of any street, alley or public place within such city, and to de- 
sign, order, contract for and execute the improvement or repair of any 
street, alley or public place wdthin such city. To repair, clean, light 
and sprinkle any street, alley or public place within such city v^^hich 
requires the same, in the opinion of such board, said work to be done 
either by contract or otherwise, and to cause lamp posts or other light- 
ing apparatus to be erected in the streets, alleys or public places of 
such city. To lay out, design, order, contract for and execute the 
construction, alteration and maintenance of all public drains or sewers 
within such city, and all drains or sewers without such city and with- 
in four (4) miles thereof, which may be necessary to carry off the 
drainage of such city. To purchase or erect, by contract or other- 
wise, and operate water-works, gas-works, electric light works, street 
car and other lines for the conveyance of passengers and freight, nat- 
ural gas lines, telegraph and telephone lines, for the purpose of supply- 
ing such city, and the suburbs thereof, or to purchase or hold a majority 
of such stock in corporations organized for either of the above purposes: 
Provided, That none of the powers conferred by this paragraph shall be 
exercised except pursuant to an ordinance specifically directing the 
same. To contract for the furnishing of gas, either natural or artificial, 
water, steam or electricity, light or power to said city or the citizens 
thereof, by any company or individual, and such contract to fix the 
prices to be charged for the same in such city, subject to ordinances 
of such city in relation to consumption by private consumers. Pro- 
vided, That such contracts shall in all cases be submitted by said board 
to the council of such city, and be approved by them by ordinance 
before the same shall take effect. To design, order, contract for and 
execute the erection of any culvert, bridge, way, viaduct, tunnel or 
aqueduct within such city, or to enter into a contract with any com- 
pany or individual for the joint erection and maintenance by such 
company or individual and such city of any such structure. To au- 
thorize and empower by contract, telegraph, telephone, electric light, 
gas, water, steam or street car or railroad companies to use any street, 
alley or public place in such city, and to erect necessary structures 
therein, and to prescribe the terms and conditions of such use: 
To fix by contract the prices to be charged to patrons: Provided, 
That such contract shall in all cases be submitted by said board to the 
council of such city, and approved by them by ordinance before the 
same shall take effect: to license the digging of any hole, or the re- 
moval of any material from the surface or underneath the surface of 
any street, alley or public place in such city; to require bonds for 
damages and for the proper replacement of the street, and to refuse 



§ 753 CITIES OF MORE THAN THIRTY-FIVE THOUSAND. 564 

such licenses when the public interest requires it. To direct the re- 
moval of any and all structures in the streets, alleys or public places 
of such city, and to remove the same at the expense of the person, 
maintaining the same on their failure to make such removal. To de- 
sign, order, contract for and execute the erection of any levee within 
the limits of such city or within four (4) miles thereof. To change 
any water-course, natural or artificial, within such city or within four 
(4) miles thereof. To remove all dead animals, garbage, filth, ashes, 
dirt, rubbish or other offal from such city, either by contract or other- 
wise. To prepare a general uniform plan for the drainage and sewer- 
age of such city, and extend the same from time to time. To make 
and keep a map and record of all sewer, gas, water, electric wire con- 
duits in such city, public and private, showing the size, depth, in- 
clination, location and date of construction of the same, and to record 
therein every change which may be made in the same, together w4th 
all new connections and improvements. To discharge all other duties 
of an executive character not falling within the sphere of some other 
executive department, or imposed upon this department by ordinance. 
To fill up or drain any section of ground within such city or within 
four (4) miles from its corporate limits whenever water has or may 
become so stagnant or noxious as to be injurious to the public health 
and comfort at the owner's expense, the same to be a lien and col- 
lectible by foreclosure. To construct urinals and fountains in public 
places. To fix, establish, change and keep a record of the grades of 
all streets, alleys and sidewalks. [x4s amended, Acts 1899, p. 138. 
In force February 27, 1899.] 

See note, ante, § 440. 

Power over streets, alleys and bridg'es— Duties— Liabilities— Obstnictions— Neg- 
lig^ence— Actions— Damag'es.— See ante, § 218 and notes. 

Plats— Dedication of streets— Prescription, etc.— See ante, § 218 and notes. 

Opening" and vacation of streets— Eminent domain, etc.— See ante, § 218 and 
notes. 

Improvement of streets— Fixing- and chang-ing- grade. See ante, §§ 91, 218, 219, 
and 2>ost, §§ 1107-1135 and notes. 

Sewers, drains, etc.— See ante, § 124, clauses 26 and 43 and notes, and §§ 127 and 183 
and notes ; also post, § 1090, et seq., and notes. 

Corporations occupying- streets under municipal franchises— Duties and liabili- 
ties, etc. — See ante, § 218 and notes. 

Water-works— Contracts, ordinances, etc.— See ante, § 124, clause 26 and note, and 
clause 43 and notes, and § 138, et seq. ; post, §§ 1061-1089, and § 1372, et seq. 

Public lig'lits— Gas and electricity.— See ante, § 124, clause 28 and notes, and post, 
§ 1136, et seq., and notes ; also post, § 1371, et seq. 

Railroads— Occupation of streets, etc.— See ante, §218 and notes, and post, §1316, 
et seq., and notes. 

Street car companies— Occupation of streets, etc.— See ante, § 218 and notes, and 
post, § 1332 and notes. 

Teleg-rapli and telephone companies. —See ante, §§ 1 and 4 and notes, and §218 and 
notes, and as to telephone companies, post, § 1380 and noteST 

Municipal property— Purchase— Sale— Control of, etc.— See ante, § 124 and notes. 



565 EXECUTIVE AND JUDICIAL OFFICERS AND DEPARTMENTS. § 7o4 

751. Contracts for work. — 64. It shall be the duty of said 
board of public works, whenever any work "or improvement of any 
character ordered or undertaken by it, is payable out of the general 
treasury of such city from funds belonging to such city," or payable 
in whole or in part by assessments made for that purpose upon the 
property benefited thereby, to cause said work to be done either by in- 
dependent contract or by employes of said board as said board may 
deem best: Provided, That in cases where such work is done by inde- 
pendent contract, such contract shall provide and stipulate under 
proper penalty that such contractor shall give residents of said city 
and county wherein it is located the preference as employes. [As 
amended, Acts 1899, p. 138. In force February 27, 1899.] 

755. Letting contracts — Notice— Bids— Collusion, etc.— 65. When- 
ever said board shall order any vv^ork to be done, which either by order 
of said board or according to law, it is to be performed by independent 
contract, said board shall prepare and place on file in the office of said 
department complete drawings and specifications of said work. 
Thereupon said board shall cause a notice to be published in one daily 
or w^eekly newspaper of general circulation published in such city, 
once each week for two weeks, informing the public and contractors 
of the general nature of the work and of the fact that the draw- 
ings and specifications are on file in such office, and calling for 
sealed proposals for such work by a day not earlier than ten (10) days 
after the first of said publications. Said board shall require each 
bidder or firm of bidders to file with said board an affidavit that such 
bidder or bidders have not directly or indirectly entered into any com- 
bination, collusion, undertaking or agreement with any other bidder 
or bidders to maintain the price of any work or contract or to prevent 
any other bidder or bidders from bidding or to induce any bidder or 
bidders to refrain from bidding on any contract or work, and that 
such bid is made without regard or reference to any other bid or bids, 
and w^ithout any agreement, understanding, or combination, either 
directly or indirectly, with any other person or persons with reference 
to such bidding in any way or manner whatever. And if after any 
contract has been let by said board it shall be made to appear to said 
board that the successful bidder has been guilty of any collusion, 
combination, understanding or agreement, as defined in said affidavit, 
such bidder shall forfeit said contract and such work shall be relet by 
said board. The board may in its discretion fix a later day for receiv- 
ing such sealed proposals, provided, such date shall be mentioned in 
each of such notices. Said board shall, if a satisfactory bid be re- 
ceived, let such contract to the lowest and best bidder. Such board 
may by order impose further conditions-upon bidders with regard to 
bond and surety guaranteeing the good faith and responsibility of 
such bidders or insuring the faithful completion of such work, ac- 
cording to contract, or for keeping the same in repair for any length 
of time, or for any other purpose. [As amended, Acts 1899, p. 138. 
In force February''27, 1899.] 



§ 75G CITIES OF MORE THAN THIRTY-FIVE THOUSAND. 566 

756. Expenses of board — Payment. — 66. All the expenses incurred 
or authorized by such board of public works shall be payable out of the 
general funds of such city appropriated to the use of such board and 
available for the particular purpose, except where this act specifically 
directs that the same is to be paid for by assessments against property 
holders. R. S. 1894, § 4120. 



CONDEMNATION. 

757. Appropriation of property.^ — 67. Whenever the board of pub- 
lic works shall desire to appropriate or condemn, for the use of such 
city, and [any] property, real or personal, or to open, change, lay out 
or vacate any street, alley or public place within such city, including 
proposed street or alley crossings of railways in cases where the pro- 
posed street or alley is to cross a railway, it shall adopt a resolution 
to that effect, describing the property which may be injuriously or 
beneficially affected, and shall cause notice of such resolution to be 
published in some daily newspaper of general circulation in such city 
once each week for two weeks. Such notice shall name a date, after 
the last day of publication, at which said board will receive or hear 
remonstrances from persons interested in or affected thereby. Said 
board shall consider such remonstrances, if any, and thereupon take 
final action, confirming, modifying or rescinding their original reso- 
lution. Such action shall be final and conclusive upon all persons, 
except upon the dismissal and abandonment of the proceedings as 
hereinafter provided. R. S. 1894, § 4121. 

For decisions on eminent domain, opening and vacation of streets, etc., under the 
general law of 1867, see ante, § 218, et seq., and § 224, et seq., and notes. 
See, also, constitutional law, ante, §§ 4 and 11 and notes. 

758. Koll of owners of property. — 68. Upon the final order being 
made, as provided in the preceding section, said board shall cause to 
be prepared a list or roll of all the owners or holders of property 
and of valuable interests therein, sought to be taken or to be inju- 
riously affected, and in the case of opening, laying out, change or va- 
cation of any street, alley or public place in such city, or within 
four miles thereof, a list of the ovv^ners or holders of property, or of 
valuable interests therein to be beneficially affected by such work. 
Such list shall not be confined to the owner of property along the 
line of proposed work, but shall extend to and include all property 
taken, benefited or injuriously affected. In addition to such list of names, 
the name [same] shall show, with reasonable certainty, a description 
of such property to be taken or affected, either beneficially or injuri- 
ously, belonging to such persons. No greater certainty in names or 
descriptions shall be necessary to the validity of any assessment than 
is required in the assessment of taxes. R. S. 1894, § 4122. 

759. Award of damages — Notice. — 69. Upon the completion of 
such list, said board shall proceed to award the damages sustained, and 



00/ 



;XECUTIVE AND JUDICIAL OFFICERS AND DEPARTMENTS. § 760 



to assess the benefits accruing to each piece of property of said list. 
When such assessments or awards are completed, said board shall 
cause a written notice to be served upon the owner of each piece of 
property, showing the amount of such assessment or award, by leav- 
ing a copy of the same at his last usual place of residence, in such 
city, or hj delivering a copy to such owner personally. If such 
person be a non-resident, or his residence shall be unknown, then he 
shall be notified by publication in some daily newspaper of gen'eral 
circulation in such city once each week for three successive weeks. 
Such notices shall also name a day, not earlier than ten (10) days 
after service of notice or after the last publication, as the case may be, 
on which said board shall receive or hear remonstrances from, persons 
with regard to the amount of their respective awards or assessments. 
Persons not included in such list of assessments or awards, and claim- 
ing to be entitled to the same, shall be deemed to have been notified 
of the pendency of the proceedings by the original notice of the reso- 
lution of the board. R. S. 1894, § 4123. 
See note, ante, § 446. 

760, Insane persons and infants. — 70. In case any person having an 
interest in land affected by such proceedings shall be of unsound 
mind or an infant, said board of public works shall certify the same 
to the city attorney, and said city attorney shall forthwith apply to the 
proper court and secure the appointment of a guardian for such infant 
or person of unsound mind; and thereupon said board shall give no- 
tice to such guardian, who shall thereupon appear and protect the in- 
terest of his ward: Provided, That if such infant or person of unsound 
mind already have a guardian, such notice may be served on such 
guardian. The requisites of notice to such guardian shall be the 
same as in the case of other notices. If there be a defect in the pro- 
ceedings with respect to one or more interested persons, the same shall 
not affect such proceedings except so far as it may touch the interest 
or property of such person or persons, and shall not avail any other 
person concerned therein. In case of such defect, supplementary pro- 
ceedings of the same general character as those heretofore prescribed 
may be had in order to supply the same, R. S. 1894, § 4124. 

761. Remonstrance — Appeal. — 71. Any person notified, or deemed 
to be notified, under the preceding sections, may appear before such 
board on the day fixed for hearing such remonstrances with regard to 
awards and assessments, and to remonstrate against the same. After 
such remonstrances shall have been received, said board shall there- 
upon either sustain or modify the awards or assessments in the cases 
of such remonstrances, but in no other case. Any person thus re- 
monstrating who is aggrieved by the decision of the board, may, within 
twenty (20) days thereafter, take an appeal to the circuit or superior 
court in the county in which said city is located. Such appeal shall 
only affect the assessment or award of the person appealing. R. S. 
1894, 5 4125. 



§ 762 CITIES OF MORE THAN THIRTY-FIVE THOUSAND. 568 

763. Appeal — How taken — Judgment. — 72. Such appeal may be 
taken by filing an original complaint in such court against such city 
within the time named, setting forth the action of the said board of pub- 
lic works in respect to such assessment, and stating the facts relied upon 
and showing an error on the part of such board. Such court shall re- 
hear the matter of such assessment de novo, and confirm, lower or in- 
crease the same as may seem just. In case such court shall reduce 
the amount of benefits assessed against the land of such property 
holders, or increased the amount of damages awarded in his favor, to 
the extent of ten per centum of such benefits and [or] damages, the 
plaintiff in such suit shall recover costs, otherwise not. The judg- 
ment of such court shall be final, and no appeal shall lie therefrom. 
Provided, If upon such appeal the report of the board of public w^orks 
as to benefits or damages be greatly diminished or increased, the city 
may, upon the payment of costs, discontinue such proceedings. R. S. 
1894, § 4126. 

763. Assessment of benefits — Lien. — 73. On the completion of 
such assessment roll by said board of public works, the same shall be 
forthwith delivered to the department of finance, and from that time the 
respective amounts of benefits therein assessed shall severally be liens, 
superior to all other liens except taxes, against the respective lots or 
parcels of land upon which they are assessed. Said department of 
finance shall at once prepare a duplicate of said assessment roll of 
benefits, the same to be known as the local assessment duplicate, and 
deliver the same to the treasurer. The duties of the treasurer and of 
the department of finance in respect thereto shall be the same as here- 
inafter more specifically prescribed with regard to assessments for street 
im'provements. R. S. 1894, § 4127. 

764. Beneflts—Wlien due — Collection. — 74. Said assessments of 
benefits shall be due and payable to the treasurer from the time of 
the delivery of said assessment duplicate to said treasurer. If not paid 
within sixty (60) days thereafter, the said city by its attorney shall 
proceed to foreclose said liens in a court of competent jurisdiction as 
mortgages are foreclosed, with similar rights of redemption, and 
have the same sold to pay such assessments. Such city shall recover 
costs, with a reasonable attorney's fee, and interest from the expira- 
tion of the sixty (60) days hereinbefore allowed for payment, at the 
rate of six per cent. (6 per cent. ) per annum. In all cases where the 
party against whom the assessment is made is a resident of such city, 
demand for the payment of the same shall be made by delivering to 
him personally, or leaving at his last and usual place of residence, a 
notice of such assessment and demand for payment. R. S. 1894, 
§ 4128. 

See note, ajite, § 451. 

765. Payment by city of damages.— 75. Said board of public works 
shall have power to determine what, if any, part of the damages 



569 EXECUTIVE AND JUDICIAL OFFICERS AND DEPARTMENTS. § 766 

awarded shall be paid out of funds appropriated for the use of such 
board by the common council: Provided, That not more than $2,000 
in damages shall be paid out of the city funds for any improvement or 
condemnation unless pursuant to an ordinance appropriating for the 
specific improvement or condemnation. All benefits assessed and col- 
lected by the treasurer shall be subject to draft, in the usual manner, 
upon certificate by the board of public works in favor of persons in 
whose favor damages have been awarded. Any surplus remaining 
above actual awards shall belong to such city. Said board may delay 
proceedings until such benefits have been collected. R. S. 1894, 
§ 4129. 

766. Damages — Payment. — 76. It shall be the duty of the board 
of public works, upon the completion of their award of damages, 
or whenever any time for delay as above mentioned shall have expired, 
to make out certificates for the proper amounts and in favor of the 
proper persons, upon the presentation of w^hich to the head of the de- 
partment of finance such person shall be entitled to a warrant on the 
city treasurer. Such certificates or vouchers shall, whenever practica- 
ble, be tendered actually to the persons entitled thereto, but where 
this is impracticable the same shall be kept for such person in the 
office of said board of public works, and the making and fixing of 
such certificate shall in all cases be deemed to be valid and effectual 
tender to the person entitled thereto, and the same shall be delivered 
to him on request. In case of a dispute, or doubt as to which of the 
various persons said money shall be paid, said board shall make out 
such certificate in favor of the city attorney for the use of the persons 
entitled thereto, and said attorney shall thereupon draw the money 
and pay the same into court in a proper proceeding, requiring the 
various claimants to interplead and have their respective rights de- 
termined. In any case where an injunction is obtained because dam- 
ages have not been paid or tendered, said board may tender such 
certificate for the amount thereof with interest from the time of entry 
upon the property, if any has been made, and all accrued costs, and 
thereupon the injunction shall be dissolved. The pendency of an ap- 
peal shall not affect the validity of a tender made under this section, 
but such city shall be entitled to proceed with its appropriation of the 
property in question. R. S. 1894, § 4130. 

767. Order for street improvement. — 77. Whenever the board of 
public works shall order the improvement of any street, alley, side- 
walk or other public place in said city, in whole or in part, it shall 
adopt a resolution to that effect, setting forth therein a description of 
the place to be improved, the general character of the improvement, 
the plans and specifications of the work in detail and the different ma- 
terials that the board will consider and may determine to select or 
adopt upon the receiving of bids for such work, as hereafter provided: 
Provided, That such resolution shall name not less than three kinds 
of material to be considered in street improvements. Notice of such 
resolution shall be published, remonstrances heard as to the necessity 



§ 768 CITIES OF MORE THAN THIRTY-FIVE THOUSAND. 570 

of said improvement, said resolution modified, confirmed or rescinded 
in the same manner as heretofore more specifically provided by this 
act with regard to the condemnation of property and the opening of 
streets. If such original resolution be altered, confirmed or modified, 
it shall be final and conclusive on all persons, unless within ten days 
thereafter two-thirds of the resident freeholders along and upon such 
street or alley remonstrate against such improvement. In case of such 
remonstrance, the improvement shall not take place unless specifically 
ordered by an ordinance within sixty days thereafter, passed by a two- 
thirds vote of the council, which ordinance shall be valid without the 
approval of the mayor. If said board shall finally order such im- 
provements, it shall advertise for bids for all the different materials 
specified in the original resolution in accordance with the various 
plans and specifications relating thereto on file in the office of the 
board of public works; upon the opening of said bids, said board shall 
adopt the material and plans to be used in such improvement out of 
the different bids that were received, unless all bids are rejected, and 
the board's action shall be binding and conclusive upon all persons 
affected by said improvement without further notice, unless w^ithin 
five d'ays thereafter freeholders owning two-thirds of all the real estate 
along and upon such street or alley shall by written request to the 
board ask the adoption of some other material, upon which bids have 
been received, in which case the board shall adopt such material. [As 
amended, Acts 1899, p. 342. In force March 3, 1899.] 

See note, ante, § 454. 

For powers over streets, duties and liabilities, improvement of streets, etc., under the 
general law of 1867, and amendatory and supplemental laws, see ante, §§ 218-223 and 
notes, and jposi, §§1107-1135 and notes. 

For constitutional provisions and decisions, see ante, §§ 4 and 11 and notes. 

768. Land or lots assessed — Cost — How estimated — Liability of 

city. — 78. If said street be constructed all land or lots or parcels of 
land or lots lying between the edge of such street and a line drawn an 
equal distance from such edge of such street and the edge of the next 
street running parallel thereto, shall be assessed and made liable to 
pay the cost of constructing such street so improved, and the amount 
of the several assessments shall be ascertained and estimated as fol- 
lows: The total cost of improving such street or alley shall first be 
ascertained and the amount thereof shall be divided by the number of 
feet the same is in length, and the cost of each running foot shall be 
assessed upon the lots or land fronting or abutting thereon, if such 
land or lots extend to said line as hereinbefore stated in the propor- 
tion that the same fronts or abuts upon such street compared with the 
entire length of such improvement. If the land or lots belong to dif- 
ferent persons, then such board shall assess such cost against the vari- 
ous land-owners and upon the various lots or parcels of land herein 
declared liable to pay for such improvement according to the benefits 
received from such improvement, because of being upon, near, or 



571 EXECUTIVE AND JUDICIAL OFFICERS AND DEPARTMENTS. § 769 

having access to such improvement, and such benefit shall be without 
regard to the assessment for taxation herein provided. Such city 
shall be liable to the contractor for the contract price of such improve- 
ment to the extent of the moneys actually received by said city from 
the assessment for such improvement hereinafter provided for, and 
for its pro rata share for street and alley crossings; the city to pay for 
whatever work is done on such improvement that is not in front of 
some lot or tract of ground; the computation to be made as hereinbe- 
fore provided. Such city shall have separate and several liens on such 
lots or lands from the time the contract for such improvement is 
finally let for the respective assessments against each lot or parcel of 
land. [As amended. Acts 1895, p. 239. In force March 11, 1895.] 
Burns' Supp. 1897, § 4132. 
See notes, ante, § 4-55. 

769. Lieu — Street and alley crossings — Becliictions. — 79. The lien 
herein given upon the several lots and parcels of land or tracts of land 
shall be deemed to include the assessment, principal and interest, to- 
gether with costs of foreclosure and a reasonable attorney's fee. The 
lien of the same shall have precedence over all liens except ^taxes. 
Any mistake in the description of property, or the name of the owner 
shall not vitiate such liens. Such city shall be liable to pay for all 
that part of the street or alley crossings which shall be occupied by 
street or alley crossings and not in front of any land or lots as here- 
inbefore provided, and said board shall order that pro rata part paid 
out of the funds at their disposal for that purpose, to that extent re- 
ducing the total amount to be apportioned against property holders. 
If before ordering such improvements any land or lots have already 
an[y] improvements in front thereof conforming to the general plan, 
said board shall make an allowance to said owner thereof, to be de- 
ducted from his assessment and from the total amount of the contract 
price. [As amended, Acts 1895, p. 239. In force March 11, 1895.] 
Burns' Supp. 1897, § 4133. 

See notes, ante, § 456. 

770. Payment by installments. — 80. Whenever said board of pub- 
lic w^orks shall order the improvement of any street or alley, as pro- 
vided in the preceding sections, the assessment for such improvement 
may, at the option of each property-holder, be payable in ten (10) an- 
nual installments, as follows: Ten (10) per cent., of the principal, to- 
gether with all accrued interest on the entire assessment on or before 
the third Monday of April next succeeding the allov>^ance of the final 
estimate on such w^ork by said board, except where such estimate has 
been made between March 15 and October 1, of any year, in w^hich 
case such first installment shall be payable on the first Monday of No- 
vember next succeeding such estimate. The next payment on said as- 
sessment shall be six (6) months' interest on the unpaid principal, pay- 
able at the date for the general payment of taxes, either spring or fall, 



§ 771 CITIES OF MOEE THAN THIRTY-FIVE THOUSAND, 572 

as the case may be, next after the instanmeiit on such assessment falls 
due. The next payment on said assessment shall be ten (10) per cent, 
of the original principal and six (6) months' interest on the unpaid 
principal, payable on or before the date for the general payment of 
taxes, spring or fall, as the case may be, accruing one year after the 
first installment was payable, and so on, thereafter ten (10) per cent, of 
the original principal with six months' interest on the unpaid prin- 
cipal once each year, and six months' interest in alternate turn with 
each annual payment of principal and interest until the principal and 
interest have been paid. R. S. 1894, § 4134. 

771. Assessment roll. — 81. In making assessments against each 
lot or parcel of land, said board of public works shall, as soon as any 
contract has been completed for the improvement of any street or 
alley, make out an assessment roll with names of property holders 
and descriptions of the property adjoining the place of such proposed 
improvement. Said roll shall also have set opposite each name and 
description, the total pro rata assessment against each piece of prop- 
erty. When confirmed, said assessment roll shall be delivered to the 
head of the department of finance. Before the said board shall ap- 
prove and accept the work under any contract, and allow a final esti- 
mate therefor, the contractors who have performed such work shall 
file with said board an affidavit of some one or more persons having 
knowledge of the facts, that all work done under such contract and all 
materials used are of the character, kind, quantity and quality re- 
quired by the specifications on which such contract was let and that 
said work has been done in conformity with said contract and speci- 
fications, and according to the directions of said board and the city 
engineer. [As amended, Acts 1899, p. 138. In force February 27, 
1899.] 

See note, ante, § 458. 

772. Final estimate — Notice — Hearing. — 82. Whenever the board 
of public works shall approve and accept the entire work under any 
contract and allow a final estimate therefor, it shall be the duty of 
such board to give one week's notice by one insertion in a daily news- 
paper, if any there be, and if there be no such paper, then by posting 
notices in at least three public places along the line of such improve- 
ment, of the time and place when and where a hearing can be had 
upon such estimate, before such board. Any person feeling himself 
aggrieved or injured by the acceptance of such work or by such esti- 
mate, shall be accorded a hearing thereon. The board may adjourn 
such hearing from time to time, and of such adjournment all parties 
interested shall take notice. After the hearing of such objections, if 
any, the board may change, modify or confirm such estimate, and it 
shall thereupon be the duty of the department of finance to forthwith 
deliver to the treasurer a certified copy of such final assessment roll. 
The costs of all notices shall be estimated in and as a part of the total 
cost of any such improvement. Such duplicate assessment roll shall 



573 EXECUTIVE AND JUDICIAL OFFICERS AND DEPARTMENTS. § 773 

be known as the local assessment duplicate, and shall be appropriately 
prepared, showing the amount due on each piece of property, if paid 
in cash within the time limited, together with necessary columns, in 
which such assessment shall be extended, showing the amount of 
each installment, and when payable, whenever the same shall be paid 
in installments, together with the interest due at each spring and fall 
payment of taxes, until the same shall be fully paid. Said book shall 
also have appropriate columns in which payments may be properly 
credited, and also the place for the satisfaction of the lien by the treas- 
urer. All assessments, whether payable in installments or not, shall 
be payable to the treasurer, except as otherwise herein provided, whose 
duty it shall be to receive the same and give proper receipts therefor 
and enter the proper credit and satisfaction in said book or dupli- 
cate assessment roll. R. S. 1894, § 4136. 
See notes, ante, § 459. 

773, Agreement of persons paying toy installments, — 83. Who- 
ever desires to exercise such privilege of payment by installment shall 
at any time before the expiration of fifteen (15) days after the allow- 
ance of the final estimate aforesaid, enter into an agreement in w^riting 
that in consideration of such privilege he will make no objection to 
any illegality or irregularity with regard to the assessment against his 
property and v/ill pay the same as required by law with the specified 
interest. Such agreement shall be filed in the office of the department 
of finance. In all cases where such agreement has not been signed 
and filed within the time limited, the entire assessment shall be pay- 
able in cash without interest before the expiration of said fifteen (15) 
days. After said fifteen days, if not paid when due such total assess- 
ment shall bear interest at the rate of six per cent. (6 per cent. ) from 
the date of the final estimate. Persons signing and filing the agree- 
ment within the time limited, and entitled to pay in installments, 
may nevertheless at any time after the expiration of the first year, pay 
up their entire assessment and stop the interest thereon and be relieved 
of the lien of the same, on condition that they at the same time pay 
up all accrued interest, and also interest up to the time the next in- 
stallment of interest is payable: Provided, That before such persons 
shall be entitled to make such prepayments they shall give notice in 
w^riting at the treasurer's office of their intention so to do, six months 
in advance of the time when such payment is made. [As amended, 
Acts 1899, p. 138. In force February 27, 1899.] 

See note, ante, § 460. 

774. Duty of treasurer — Account of fund, — 84. It shall be the 
duty of the treasurer to receive the same, keep all accounts thereof, and 
give proper vouchers thereof. The department of finance shall charge 
the treasurer with the amounts of such assessments and interest as it 
accrues. The department of finance shall carefully keep a separate ac- 
count of the fund arising from each particular improvement ordered 



§ 775 CITIES OF MORE THAN THIRTY-FIVE THOUSAND. 574 

by tlie board of public works pursuant to this act, and no proceeds 
arising from assessments for the improvement of any particular street 
or alley shall be diverted to the payment for any other improvement 
whatever. The proceeds shall in each case constitute a separate 
special fund for the payment of contractors for the particular work, 
upon the allowance of estimates by the board of public works, or for 
the security and payment of street improvement bonds, if any are 
issued, as hereinafter provided for such street or alley. R. S. 1894, 
§ 4138. 
See note, ante, § 461. 

775. Street iiiiprovemeHt foonds.-— 85. For the purpose of antici- 
pating the collection of such assessments, the department of finance 
shall issue street or public improvement bonds, payable out of the 
funds actually paid to and collected by such city on such account, the 
proceeds of the same [to] be applied exclusively to payment for the 
improvements on the particular street or alley for the anticipation of 
the assessment for which the same are issued. Bonds shall be issued 
for the principal of such assessment or assessments, and appropriate 
coupons shall be thereto attached, evidencing and representing the 
semi-annual interest. The bonds shall bear interest at a rate not ex- 
ceeding five per centum per annum, to be computed from the date of 
the final estimate, which interest shall be payable semi-annually as 
herein provided. In cases where the final estimate is allowed at any 
time during the period intervening between the first day of March 
and the first day of October in any year, the bonds and coupons shall 
be dated on the first day of January of the year following, and in 
cases where the final estimate is allowed at any other period in any 
other year than that intervening between the first day of March and the 
first day of October, in any year, the bonds and coupons shall be dated 
on the first of July, following. The interest shall be computed from 
the date of the final estimate up to the date of such bonds, and the 
coupons shall properly evidence and provide for such interest com- 
puted as aforesaid from the date of the final estimate. Each bond 
shall bear the name of the street or alley for which it is issued, in 
cases where it is issued for street improvement assessments, and in 
cases where it is issued for sewer or other assessments shall appro- 
priately designate the improvement or work for which it is issued. 
Assessments in cases where the option to pay in installments is exer- 
cised shall be payable as follows: Ten per centum of the principal, 
together with all accrued interest on the same, on or before the first 
Monday of May next succeeding the allowance of the final estimate 
on such work by the board except where such estimate has been 
made between March first and October first of any year, in which 
case such first installment shall be payable on the first Monday 
of November next succeeding such estimate: the next payment 
shall be six months' interest on the entire unpaid principal pay- 
able at the date for the general payment of taxes, either spring 



DtO EXECUTIVE AND JUDICIAL OFFICERS AND DEPARTMENTS. § //O 

or fall, as the case may be, next after the first installment falls due; 
the next payment shall be ten per centum of the original princi- 
pal and six months' interest on the unpaid principal, payable on or 
before the date for the general payment of taxes, spring or fall, as the 
case may be, occurring one year after the first installment was paya- 
ble; and so on, thereafter, ten per centum of the original principal, 
with six months' interest on the unpaid principal. once each year, and 
six months' interest on the unpaid principal in alternate turn with the 
annual payment of principal and interest until the entire principal and 
interest have been paid. It being hereby intended and provided that 
installments of principal and interest shall be paid in advance of the 
maturity of the bonds and coupons, in order to enable the treasurer 
to pay such bonds and coupons as they respectively fall due, for which 
purpose the said treasurer shall hold the money paid to him. It shall 
be the duty of the treasurer to promptly and properly apply all money 
paid in on such installments to the holders of the bonds and coupons, 
and he shall not use the money received by him in payments of such 
installments for any other purposes whatever than that of paying the 
bonds and coupons, and shall promptly ascertain the amount paid in on 
such installments, and without delay pay the same to the bond and 
coupon holders entitled thereto. In case any person shall exercise his 
right of prepayment of his assessment, as by law provided, and shall 
fully pay such assessment and interest, all interest and liability shall 
thereupon cease as to the property upon which the assessment so paid is 
levied. Said prepaid assessments shall constitute a ' 'special fund," to be 
held in trust by the treasurer in the form hereinafter prescribed, for the 
owner or owners of the different issue of bonds, upon which such pre- 
payments have been made; it shall be the duty of the city, through its 
comptroller, to invest such trust funds in bonds similar in kind and 
character, at par, for the benefit of said city as trustee for the holders of 
the bonds and interest coupons upon which such prepayments were 
made, and the city shall become liable to such holders to the amount of 
the prepayments thereon made, with the interest on the principal there- 
of. The said bonds in which said trust funds are invested, shall be held 
and collected by the treasurer as other bonds are collected, and the 
money applied in payment of the installment of interest and princi- 
pal of the bonds upon which said prepayments were originally made, 
or to said city: Provided, That it has paid the same. If any property 
owner owning any part of any bond issued for the purposes in this act 
provided is in default in the payment of any installment of his interest 
or principal at the time any installment of principal or interest of said 
bond becomes due, it shall be the duty of the common council, upon 
recommendation by the comptroller, to appropriate mone}^ out of the 
general fund, to pay such delinquent's part of said installment of 
principal or interest of such bond, and out of the collection of such 
delinquency, with penalties and interest as hereinafter provided, to 
reimburse such general fund to the amount of such payment. It shall 
be the duty of the treasurer, in all cases where any property owner is 



§ 775 CITIES OF MORE THAN THIRTY-FIVE THOUSAND. 576 

in default, in the payment of an installment, or any part thereof, 
chargeable upon or against his property, to assess a penalty of ten per 
centum upon any installment, or any part thereof, with six per cent, 
interest, for such delinquency, which said penalty and interest, when 
collected, shall be and become the property of the city, and the treas- 
urer shall, on the first day of January of each year, certify to the 
county auditor, a list of such delinquencies or delinquents. And the 
county auditor, between the first Monday of November and the first 
day of January, in each year, shall enter on the tax duplicate as de- 
linquent, against the name of each person remaining delinquent, such 
delinquent special assessments so certified to him by the treasurer, as 
aforesaid, against the lands and lots described in such certifications of 
the treasurer, which said assessments shall be carried out with the 
taxes for state, county, township, road, city, school or other purposes, 
if any delinquent, into one total. Payment of such special assess- 
ment, with interest, penalty and costs, shall be enforced by the sale of 
the lands and lots liable therefor, or so much thereof as may be nec- 
essary, which sale shall be made by the county treasurer in the same 
manner, and at the same time and place and upon the same notice as 
is prescribed by law for the sale of lands and lots for the payment of 
delinquent state, county, township, road, city, school and other taxes, 
the property to be offered for sale and sold for the payment of all taxes 
and assessments of every kind, for which the same is liable, with in- 
terest, penalty and costs thereon, as one entire sum, and not separately 
for said special assessments, unless said special assessments are the 
only taxes or assessments delinquent, in which case such property 
may be sold to satisfy said special assessment alone. Payment of the 
bid, upon the sale of any such lands and lots, shall be enforced so far 
as it relates to such municipal assessments, together with the penal- 
ties above provided for, by the same officer, and in the same manner 
as is provided for by law for the enforcement of the payment of a bid 
made upon the sale of lands and lots for the state, county, township, 
road, city, school and other taxes, and the proceeds of sale shall be 
held by the treasurer and paid to the parties entitled thereto: Pro- 
vided, however, If any lands or lots are sold for the payment of any de- 
linquent special assessment together with other delinquent taxes, or 
for special assessments alone, said lands and lots shall not be released 
from the payment of the balance of said assessments or the interest 
thereon as the same becomes due, and if delinquent to be sold 
as hereinbefore provided. The^ guarantee required by law to be 
endorsed by the county treasurer upon each certificate given by 
him upon a purchase of lands, and lots for state, county, 
township, road, city, school and other taxes, shall, in every case 
where such sale is made for said municipal assessments also ap- 
ply to and embrace the amount of such municipal assessments for 
which sale was made; and the holders of such certificate shall have the 
same remedy upon such guaranty as to municipal assessments em- 
braced therein, that he has as to the state, county, township, road, city, 



577 EXECUTIVE AND JUDICIAL OFFICERS AND DEPARTMENTS. § 775 

school and other taxes, to which the same relates. All provisions of 
law in reference to the certificates to be issued to a purchaser of lands 
and lots upon sale for state, county, township, road, city, school and 
other taxes ; the making of deeds upon failure of redemption, and as 
to the force and effect of such deeds ; the effect of such sale, and the 
rights of the purchaser ; redemption therefrom ; for the quieting of 
titles acquired thereunder ; for transferring to the purchaser the orig- 
inal lien for the taxes and municipal assessments for which the sale 
was made, and subsequent assessments, and for the enforcement of 
such lien by judicial proceedings when the purchaser fails to acquire 
a valid title by virtue of the purchase ; and as to the interest and pen- 
alties to be collected upon redemption from such sales before deed is 
made, or upon judicial proceedings to quiet the title or enforce the 
lien of the purchasers ; and all other provisions of law relating to the 
collecting and accounting for the state, county, township, road, city, 
school and other taxes, shall, so far as the same are applicable, apply 
with like force and effect in the case of municipal assessments in cities 
of the class referred to in this act. Said board may provide in its 
original resolution of improvement for the issue of such bonds and 
coupons directly to the contractor, in which case it shall be the duty 
of the department of finance, upon the allowance of the final estimate 
made by the board of public works, to issue the same directly to the 
contractor ; otherwise they shall be issued and sold as other city bonds : 
Provided, hoiuever, That the city can, at its option, turn over to the 
contractor, said bonds, at par, in payment of the contract price for 
which said bonds were issued. After the issue of such bonds, no suit 
shall lie to enjoin the collection of any assessment, and the validity of 
the same shall not be questioned, but all property owners shall be 
conclusively estopped and precluded from in any manner assailing 
the effectiveness or validity thereof. Such bonds, when issued, shall 
convey and transfer to the owners thereof all lien, right, title and interest 
in and to the assessments and liens upon the respective lots and par- 
cels of ground hereinbefore provided for, which liens shall stand as 
security for such bonds and coupons until they are paid, with full 
power to enforce the collection thereof, if such bond or coupon be not 
paid on presentation to the treasurer, by foreclosure in any court of 
competent jurisdiction, as provided in the preceding section, and sales 
to satisfy such bonds and coupons shall be made as hereinbefore pro- 
vided for sales upon judgments for decrees foreclosing liens for assess- 
ments levied for street improvements : Provided, That the first bond- 
holder who institutes foreclosure suit in any court of competent 
jurisdiction against such property, or any lot or parcel thereof, shall 
be entitled to have the proceeds of said suit applied pro rata to the 
payment of his own bonds and of bonds held by others. The property 
upon which the assessment is laid shall, in no event, be sold for less 
than the amount of the assessment, attorney's fees and costs, and the 
avails of the sale shall be distributed as herein provided. If the 

CiT. AND To.— 37 



§ 776 CITIES OF MORE THAN THIRTY-FIVE THOUSAND. 578 

property be sold for more tlian enough to pay the principal, interest, 
attorney's fees, costs and expenses, the surplus shall be paid to the 
property owner or party lawfully and rightfully entitled thereto. No 
more than one foreclosure suit shall be brought against any one lot or 
parcel of land, but ail lots or parcels of lands, the assessments against 
which are in default, may be joined in one proceeding. All bonds, 
as herein provided, shall be negotiable as inland bills of exchange^ 
and be free from all defenses by any property owner or property own- 
ers. It shall not be necessary in said bonds to recite the steps taken 
in ordering such improvement, or directing the assessments, but it 
shall be sufficient to make a general reference to such assessment, and 
to the statute. [As amended. Acts 1899, p. 138. In force February 
27, 1899.) 

776. Failure to pay installments — Effect. — 86. Failure to pay any 
installment of principal or interest when the same is due shall bring 
all installments of principal yet unpaid forthwith due and payable. 
If such city shall fail to collect any unpaid assessment or installment 
thereon when due, no liability shall thereby accrue against such city, 
but the owner of the bonds hereinbefore provided for, or in case no 
bonds have been issued, then the person to w^hom is due and owing 
the amount of such unpaid assessment for the performance of such 
work, shall have the right to proceed in any court of competent juris- 
diction to foreclose the liens on unpaid assessments, recovering inter- 
ests, costs and a reasonable attorney's fee, and to have the proceeds of 
sale applied on his claim. It shall be the duty of the county clerk to 
certify to the treasurer all satisfactions of assessment liens by such, 
sale, and the treasurer and comptroller shall enter the same of record. 
R. S. 1894, § 4140. 

See notes, ante, § 463. 

777. Levees, viaducts and tunnels. — 87. Whenever the board of 
public works shall order the erection or change of any levee, or the 
construction of any viaduct, tunnel or aqueduct, or the change of any 
water-course, natural or artificial, or the drainage of section of ground, 
it shall cause the necessary drawings and specifications to be prepared 
for the work and filed in such office, and shall publish a notice of the 
resolution ordering the work to be done; shall hear remonstrances, 
modif}^, confirm or rescind their original resolutions, prepare a list of 
property holders beneficially or injuriously affected by such work, ad- 
vertise for bids for such work, let the same by contract, assess benefits, 
and award damages, and in these and all other respects proceed in 
accordance with the provisions of this act relating to the appropria- 
tion of property and the laying out of streets. R. S. 1894, § 4141. 

778. Assessments — Liens — Collection. — 88. The provisions of this 
act for the liens of assessments, preparation of the duplicate assess- 
ment roll by the department of finance, delivery of such roll to the 
treasurer, the collection of assessments, right of election of property 
holders to pay the same in installments, the issue of bonds to antici- 



579 EXECUTIVE AND JUDICIAL OFFICERS AND DEPARTMENTS. § 779 

pate the same, and all other provisions with regard to street improve- 
ment assessments, shall govern in the matter of levee assessments so 
far as the same are applicable. R. S. 1894, § 4142. 

779. Sewers and drains. — 89. Whenever the board of public works 
shall order the construction of any local sewer or drain, it shall cause 
the necessary drawings and specifications for such work to be prepared 
and filed in such office: shall cause a notice of the adoption of the 
resolution ordering the work to be done to be published in some daily 
newspaper of general circulation in such city once each week for two 
weeks. Such notice shall name a date after the last day of publication 
at which such board will receive or hear remonstrances from persons 
interested in or affected thereby. On the day set said board shall con- 
sider such remonstrances, if any, and thereupon take final action, con- 
firming, modifying or rescinding their original resolution. Such 
action shall be final and conclusive on all persons. If such original 
resolution be confirmed or modified, said board shall cause a notice to 
be published in such city once each week for two weeks informing the 
public and contractors of the general nature of the work and of the 
fact that the drawings and specifications are on file in the office of the 
board, and calling for sealed proposals for such work by a day not 
earlier than ten (10) days after the first of said publications. The 
board may, in its discretion, fix a later day for receiving such sealed 
proposals, provided such day shall be mentioned in each of such no- 
tices. Whenever such sewer or drain shall, from its size and charac- 
ter, be intended and adapted not only for use by owners of abutting 
property along the line of such sewer or drain, but is also intended 
and adapted for receiving sewage from collateral drains already con- 
structed or which may be constructed in the future, then the board of 
public works shall prepare a map which will give thereon the general 
cours3 of said proposed sewer and its appurtenances, and which will 
clearly show, by boundary lines, the total area, or district, to be drained 
and to be assessed for the construction of said sewer; shall prepare all 
necessary profiles, drawings and specifications for such work, which 
map, profiles, drawings and specifications shall be placed on file in the 
office of said board; shall publish a notice of the adoption of the reso- 
lution ordering the work to be done, and shall describe in such reso- 
lution and in such advertisement the boundary lines of the district, or 
area, intended to be drained by such sewer and to be assessed for the 
cost of the same, and such publication of the adoption of the said res- 
olution shall constitute a legal notice to all owners or holders of prop- 
erty, or persons having valuable interests therein, within the bounds 
of the district or area; that such property in said district or area de- 
scribed is to be assessed for the construction of said sewer. Said pub- 
lication shall be made in some daily newspaper of general circulation 
in such city once each week for two weeks and shall name a date, 
after the last day of publication, at which said board will receive or 
hear remonstrances from persons interested in or affected by the con- 
struction of said sewer. On the date set, said board shall consider 



§ 780 CITIES OF MORE THAN THIRTY-FIVE THOUSAND. 580 

such remonstrances, if any, and thereupon take final action, confirm- 
ing, modifying or rescinding their original resolution. Such action 
shall be final and conclusive upon all owners or holders of property, 
or persons having valuable interests therein, in the district or area in- 
tended to be drained and assessed for the construction of such sewer. 
Advertisement for bids shall be made in the same manner as for the 
construction of a local sewer or drain, above provided for. [As 
amended, Acts 1899, p. 138. In force February 27, 1899.] 

See notes, ante, § 466. 

Sewers, drains, etc., and construction of under the general law. See ante, § 124, 
clauses 26 and 43 and notes, §§ 127 and 183 and notes : i^ust, §§ 1090, et seq. and notes, 
and 1107, et seq. and notes. 

780. Local sewers. -^90. Whenever any such sewer shall, from its 
size and character, be intended and adapted only for local use by prop- 
erty-holders along the line of the street or alley on which it is con- 
structed, and in the opinion of such board is not intended or adapted 
for receiving sewage from collateral drains, then, and in that case, the 
whole cost of the improvement shall be paid for by the property-hold- 
ers abutting on such street or alley in the same manner and to the 
same extent as street improvements are paid for, except that such city 
shall not be liable for the portions of such local sewer which cross 
other streets or alleys, but the total cost shall be apportioned pro rata 
against the property-holders, R. S. 1894, § 4144. 

See notes, ante, § 467. 

781. Cost — How paid. — 91. Whenever, in the opinion of such 
board, any sewer or drain ordered to be constructed, or any enlarge- 
ment of one already constructed, shall, from its size and character be 
intended and adapted not only for use by abutting property holders 
along the line of such drain or sewer, but is also intended and adapted 
for receiving sewage from collateral drains already constructed, or 
which may be constructed in the future, then, and in that case, the 
cost and expense of such sewer shall be assessed against each piece of 
property beneficially affected, in proportion to the benefits received, 
including abutting property holders, as well as the holders not situ- 
ated on the line of such drain or sewer, but, in the opinion of the 
board, beneficially affected by the construction of such sewer, either 
directly or immediately or indirectly, and by way of the advantage 
which shall be realized in the future when collateral drains may be 
constructed from such property to such main sewer. R. S. 1894, 
§4145. ^ 

782. Assessments— Collection.— 92. In making assessments against 
each lot or parcel of land said board of public works shall, as soon as 
any contract has been let for the construction of any sewer or drain, 
make out an assessment roll, with names of property holders and de- 
scriptions of the property assessed for such proposed sewer or drain. 
The assessment roll, when completed according to these provisions, 
shall be delivered to the department of finance in the same manner as 



581 EXECUTIVE AND JUDICIAL OFFICERS AND DEPARTMENTS. § 783 

street improvement assessment rolls. The department of finance and 
the treasurer shall thereupon discharge the same duties in respect 
thereto as are hereinbefore prescribed in relation to street improve- 
ment assessments. The provisions of this act in relation to the pay- 
ment of street improvement assessment by installments, and the is- 
suance of bonds to anticipate the same, and the collection of such 
assessments or bonds shall also apply to the payment of assessment 
for the construction of sewers, drain, levees, or for the change of any 
water-course, or the drainage of any section of ground. [As amended, 
Acts 1899, p. 138. In force February 27, 1899.] 

SPRINKLING OR SWEEPING. 

783. Contracts for sprinkling and sweeping. — 93. Whenever such 
board of public w^orks shall order any street, alley or public place to 
be sprinkled or swept, it shall cause the necessary specifications for 
such work to be prepared and filed in such office, shall publish a res- 
olution ordering the work to be done, shall hear remonstrances, 
modify, confirm or rescind their original resolution, and shall adver- 
tise for bids and let the same by contract, as more specifically provided 
in this act with relation to the appropriation of property and the lay- 
ing out of streets. R. S. 1894, § 4147. 

784. Cost — Assessment. — 94. The cost of such sprinkling shall 
be assessed pro rata against the property holders along the line of such 
street, alley or public place, as the cost of street improvements is 
assessed, except that such city shall not be liable to pay for the sprink- 
ling of any street or alley crossing, but the total cost of such sprinkling 
shall be paid for by the abutting property holders. The cost of sweep- 
ing shall be paid by the city out of the general fund. Such board may, 
at its option, embrace in one order or resolution, and also in one con- 
tract, any number of streets, alleys, or public places for which the 
specifications for such sprinkling or sweeping are uniform. Or such 
board may include in one resolution and contract such streets as to 
ivhich the specifications for sprinkling and sweeping are not uniform: 
Provided, That such contract and the bids therefor shall separately 
state the cost of sprinkling and sweeping streets or alleys wdth regard 
to the specifications to such sprinkling or sweeping. In such cases, 
such board may accept part of such bid on one group of streets uni- 
form in their specifications, and reject other parts of such bids on 
other groups of streets. R. S. 1894, § 4148. 

See notes, ante, §§ 472, 473. 

785. Assessments — Wlien payable. — 95. The duties of the depart- 
ment of finance and of the treasurer, the rights of contractors and the 
liability of such city in relation to such street sprinkling assessments, 
shall be the same as in the case of street improvement assessments, 
but such assessments shall be payable on the first Monday in Novem- 
ber, for any one year, in the manner that street improvement assess- 



§ 786 CITIES OF MORE THAN THIRTY-FIVE THOUSAND. 582 

ments are payable. The provisions of this act in relation to the pay- 
ment of street improvement assessments by installments, and the issu- 
ing of bonds to anticipate the same, shall have no application to street 
sprinkling assessments. R. S. 1894, § 4149. 

LAMP POSTS. 

786. Lamp posts — Contracts for.— 96. Whenever such board of 
public works shall order any street, alley or public place to be supplied 
with lamp posts by the construction of the same, it may by resolution 
order the same, without publication or notices or the hearing of re- 
monstrances; contracts for the same may be let, like other contracts, 
and the cost thereof assessed against the holders of abutting property, 
as the cost of street sprinkling, and the same shall be collected, and 
the department of finance and the treasurer shall perform the same 
duties, and the contractor shall have the same rights, as in the case of 
street sprinkling assessments. R. S. 1894, § 4150. 

Department of Public Safety. 

787. Board of public safety— Appointment — Salary. — 97. The 

department of public safety shall be under the charge of a board of 
three commissioners, to be appointed by the mayor of such city as 
hereinbefore provided. No more than two of said commissioners shall 
be of the same political party. Said commissioners shall give bond to 
such city, to be approved by and filed with the department of finance, 
for the faithful performance of their duties respectively, as required by 
ordinance. Said board shall have the care, management and super- 
vision and exclusive control of all matters relating to the fire and police 
force, fire-alarm, telegraph, erection of fire-escapes, inspection of build- 
ings and boilers, market places, and food sold therein, pounds and 
prisons. Said board shall have power to purchase all necessary sup- 
plies and apparatus, and make all repairs needed in its department, 
subject to the same provisions as are herein prescribed for the exercise 
of similar powers by the department of public w^orks. Said commis- 
sioners shall receive annual salaries of $400 each. R. S. 1894, § 4151. 

Fire department and metropolitan police and fire department under the general 

laws.— See ante, § 256, et seq., and § 296, et seq., and notes. 

788. Rules — Quorum — Chairman — Record. — 98. Said commis- 
sioners shall adopt rules for the appointment of members to said fire 
and police forces, their regulation and duties, subject however, to the 
laws of the state and to the ordinances of the common council. Any 
two of said commissioners shall constitute a quorum. Said commis- 
sioners shall adopt rules and regulations with regard to the time of 
the holding regular and called meetings and of giving notice thereof. 
They shall elect one of their number as chairman, who shall hold such 
position as long as may be prescribed by the rules of said board. Said 



583 EXECUTIVE AND JUDICIAL OFFICERS AND DEPARTMENTS. § 789 

commissioners shall cause all of their proceedings to be carefully re- 
corded by their secretary. They shall only act as a board, and no 
member thereof shall have power to bind said board, or such city, ex- 
cept pursuant to resolution of such board, authorizing him to act in 
that behalf as its authorized agent. Said commissioners shall have 
the care and charge of all property of every kind pertaining to the fire 
and police force, and to the market places, pounds and prisons of such 
city. R. S. 1894, § 4152. 

789. Duties of board.— 99. Said commissioners shall appoint a 
superintendent of police, chief of the fire force, and all other officers, 
members and employes of said fire and police forces, together with a 
market master and weigh master, and other officials necessary for such 
department of public safety. The annual pay of such appointees 
shall be fixed by ordinance of the common council, and it shall be 
lawful in such ordinance to grade the members of such forces and to 
regulate their pay, not only by rank, but by their length of service. 
In default of any ordinance fixing the compensation for any member 
of such fire or police force, said commissioners shall have power to 
fix the same subject to change by ordinance by said council. Said 
commissioners of public safety may also fix the number of members 
of said fire and police forces, and the number of appointees for other 
purposes subject to the approval of council. Said commissioners of 
public safety shall in like manner divide such city into police pre- 
cincts and fire districts. Said commissioners shall also have power to 
make and promulgate rules and regulations for the appointment of 
members to such forces, and for their government. The superin- 
tendent and [of] police shall have exclusive direction and control of 
the police force, and the chief of the fire force shall have exclusive 
control and charge of such fire force, subject to the rules, regulations 
and orders of said department of public safety. In times of peril, 
danger, riot, extensive conflagration, disorder, or the apprehension 
thereof, said chief of the fire force and the superintendent of the po- 
lice force shall, for the time being, be subordinate to the mayor and 
obey his orders and directions, anything to the contrary in this act or 
in the ordinances of such city, or in the regulations or orders of such 
commissioners of public safetv, to the contrary notwithstanding. 
K. S. 1894, § 4153. 

790. Firemen awd police — Terms — Eemoval. — 100. Every member 
of the fire and police force, and all other appointees of the commis- 
sioners of public safety, shall hold office until they are removed by 
the board. They may be removed for any cause other than politics, 
and the written reasons for such removal shall be entered upon the 
records of such board. R. S. 1894, § 4154. 

791. Punishment of firemen and policemen. — 101. On conviction 
of a member of the said fire or police force for any criminal offense or 
neglect of duty, or of violation of rules, or neglect or disobedience of 
orders, or incapacity, or absence without leave, or conduct injurious 
to the public peace or welfare, or immoral conduct, or conduct unbe- 



§ 792 CITIES OF MORE THAN THIRTY-FIVE THOUSAND. 584 

coming an officer, or other breach of discipline, said commissioners 
shall have power to punish the offending party by reprimand, for- 
feiture, suspension without pay, dismissal, or by reducing him to a 
lower grade and pay. R. S. 1894, § 4155. 

792. Powers of policemen. — 102. The officers and members of such 
police force shall possess all the common law and statutory powers of 
constables, except in relation to the service of civil process, and any 
warrant of search or arrest, issued by any judge, magistrate, mayor or 
justice of the peace of this state, may be executed in any part thereof 
by any member of said police force, subject to the laws of this state 
governing arrests and bail. The members of such police force shall 
have the exclusive power, and it shall be their duty to serve all proc- 
ess within such city issuing from the mayor's court. They shall be 
conservators of the peace in such city, and shall arrest without proc- 
ess all persons w^ho within view commit any crime or misdemeanor 
contrary to the statutes of this state, or ordinances of such city, take 
them before the mayor or judge of such city, or other officers having 
jurisdiction of the offense with which such person is charged, and re- 
tain them in custody until the cause of such arrest has been investi- 
gated, suppress all breaches of the peace within their knowledge, and 
authority is hereby given to them to call to their aid the power of such 
city; to pursue and commit to jail all felons and persons guilty of mis- 
demeanors or crimes in violation of the statutes of this state or of the 
ordinances of such city. They shall have the exclusive power, and it 
shall be their duty to serve all process issued by the common council, 
or any committee thereof pursuant to this act, or by an}^ of the execu- 
tive departments of such city. The board of public safety shall detail 
some one member of said force, or as many as it may deem necessarj^, 
to attend the mayor's court and preserve order therein. R. S. 1894, 
§ 4156. 

For powers and duties of city marshal, police officers, constables, etc., under the gen- 
eral law of 1867, see ante, §§94, 95 and notes. 

793. Duty as to prisoners. — 103. The members of the police force, 
under the direction of the superintendent thereof, shall convey pris- 
oners to and from the county jail or station-houses of such city for 
arraignment or trial in the mayor's or any court having jurisdiction, 
or to the house of correction, w^ork-house, reform school, county jail 
or other place of punishment or imprisonment, under judgment, sen- 
tence, order, or process of such court. R. S. 1894, § 4157. 

794. Additional policemen, — 104. Said commissioners shall have 
power, on application of any person or corporation, if deemed expedient, 
to detail regular patrolmen of the police force or fire force, or appoint 
and swear any additional number of special policemen or firemen to 
do special duty at any place within such city, upon such person or cor- 
poration paying for the use of such city the same rate per diem of service 
on such detail or special duty as is paid to the regular members of the 
force. Such special patrolmen shall be subject to the superintendent 



585 EXECUTIVE AND JUDICIAL OFFICERS AND DEPARTMENTS. § 795 

and such special firemen to the chief of the fire force. They shall obey 
the rules and regulations of their respective departments, conform to 
its discipline and orders, and wear such dress or badge as the com- 
missioners may direct, and shall, during the term of their appoint- 
ment, possess all the powers, privileges and duties of regular patrol- 
men or firemen. Such persons so appointed may be removed at any 
time by said commissioners without notice and without assigning any 
cause. Said commissioners may, also, upon emergency or apprehen- 
sion of riot, tumult, mob or insurrection, pestilence or invasion, ap- 
point as many special patrolmen as may be desirable, to be paid the 
same rate per day and possess the same powers, privileges and duties 
as members of the regular force, and be subject to the same ordinances, 
regulations and orders. Such patrolmen and firemen shall wear 
badges, furnished by their respective departments. Such commis- 
sioners may also detail members from the regular forces for the use of 
the department of health, or any department of the city government. 
R. S. i894, § 4158. 

795. Oaths — Who may administer. — 105. Said commissioners and 
superintendents of fire and police are authorized to administer oaths to 
any person summoned in any proceeding authorized by this act, or to 
take any depositions under the rules, regulations, or orders of said 
department of public safety. R. S. 1894, § 4159. 

796. Duties of policemen. — 106. It is hereby made the duty of 
said police force, at all times within such city, and the members there- 
of are specially empowered to preserve peace, prevent crime, detect 
and arrest offenders, suppress riots, mobs and insurrections, disperse 
unlawful and dangerous assemblages, and assemblages which obstruct 
the free passage of public streets, sidewalks, parks and places, protect 
the right of persons and property, guard the public health, preserve 
order at elections and public meetings, direct the movement of trains 
[teams] and vehicles in streets, alleys or public places, remove all 
nuisances in public streets, parks or highways, arrest all street beg- 
gars, provide proper police assistance at fires, assist, advise and pro- 
tect strangers and travelers in public streets or at railroad stations, 
carefully observe and inspect all places of business under license, or 
required to have the same, all houses of ill-fame or prostitution, and 
bouses where common prostitutes resort or reside, all lottery or policy 
shops, all gambling houses, cock pits, dance houses, resorts, and to 
suppress and restrain all unlawful or disorderly conduct or practices, 
enforce and prevent the violations of all ordinances and laws in force 
in such city. The superintendent of police and each captain in his 
precinct shall possess the power of supervision and inspection over all 
pawn-brokers, venders, junk shop keepers, cartmen, expressmen, deal- 
ers in second-hand merchandise, intelligence offices and auctions, and 
any member of such force may be authorized by the superintendent to 
exercise the same powers, by authority in writing. Said superintend- 
ent or any captain may, by written authority, empower any member 



§ 797 CITIES OF MOIIE THAN THIRTY-FIVE THOUSAND. 586 

of such police force, when in search of stolen property, of evidence, 
or of suspected offenders, to examine the books, business, or premises 
of any of the persons named in this section, and to examine property 
in whosesoever possession the same shall be. E. S. 1894, § 4160. 

797. Gaming houses.— 107. If any member of such force, or if any 
two or more householders in such city, shall report in writing, under 
his or their signature, to the superintendent of police, that there are 
good grounds (and stating the same) for believing that any house, 
room or premises within such city is kept or used as a common gam- 
ing-house, room or premises for therein playing for wagers of money 
at any game of chance, or to be kept for lewd or obscene purposes of 
amusements, or for the deposit or sale of lottery tickets or policies, it 
shall be lawful for said superintendent to authorize any member or 
members of said police force, in writing, to enter the same, who shall 
forthwith arrest all persons there found offending against law, and 
seize all instruments of gaming, or lottery tickets, and deliver the 
same to the superintendent, who shall destroy them. R. S. 1894, 
§ 4161. 

798. Arrest— Duty on making. — 108. Whenever arrest has been 
made by any member of such police force, it shall be the duty of the 
officer in making the arrest to forthwith bring the person arrested be- 
fore the mayor, or court having jurisdiction thereof, to be dealt with 
according to law; if the arrest is made during the hours when such 
court is not in session, such offender shall be detained in the city 
prison until there shall be an opportunity for such hearing at the 
earliest practicable time, or until he shall have given bond for his ap- 
pearance, and no person shall be detained longer than twenty-four 
hours without such examination, except where Sunday intervenes, in 
which case no person shall be detained longer than forty-eight hours; 
any person or corporation who shall interfere with said commissioners 
of public safety, or their appointees in the legal discharge of their 
duties, shall, upon conviction, be fined not more than one thousand 
dollars ($1,000), to which may be added imprisonment for not more 
than ninety (90) days. R. S. 1894, § 4162. 

799. Bonds of appointees. — 109. Said commissioners sha^i nave 
power, subject, however, to city ordinances, to adopt rules regulating 
the giving of bond by any appointee or class of appointees in such de- 
partment for faithful performance of official duty. R. S. 1894, § 4163. 

800. Insurance fund. — 110. Said commissioners may at any time 
draft an ordinance and submit the same to the common council, who 
shall have power to enact the same like other ordinances, for the cre- 
ation, management and distribution of a police insurance fund, or of 
a firemen's insurance fund, together with a provision for retaining a 
per cent, of each appointee's salary, for the creation of such fund, and 
prescribing the conditions of its investment and who shall be entitled 
to the benefit thereof. R. S. 1894, § 4164. 

See post, §§ 1476, et seq. and 1493, et sea. 



587 EXECUTIVE AND JUDICIAL OFFICERS AND DEPARTMENTS. § 801 

Department of Assessment and Collection. 

801. City treasurer — Office abolished. — 111. That on and after 
the taking effect of this act the office of city treasurer in all such cities 
shall be abolished, and the records, books and papers thereof, except 
as otherwise herein provided, shall be turned over to and preserved by 
such other officers of said city as the common council of such city may 
designate. R. S, 1894, § 4165. 

802. Treasurer of county to be city treasurer, — 112. The treas- 
urer of the county in which any such city is situated shall thereafter 
perform all the duties w^hich by law or the ordinances of such city 
were required to be performed by the treasurer thereof, except as herein 
otherwise provided, in the same manner and with like effects as such 
duties were required to be performed by such city treasurer ; he shall, 
immediately upon succeeding to the discharge of such duties, and be- 
fore entering upon the same, take an oath to honestly discharge such 
duties, and execute a bond, payable to the state of Indiana, with at 
least four freehold sureties, to the approval of the common council of 
such city, in a penalty to be prescribed by them, not less than the 
estimated amount of all taxes, including delinquent, to be levied and 
collected for municipal and school purposes in such city for the current 
year, conditioned that he wdll honestly and faithfully discharge the 
duties of his office so far as they relate to or affect such city, and safely 
keep and properly account for and pay over to the proper person or 
authority all moneys and property of such city which may come into 
his hands, which bond shall be filed with and preserved by the de- 
partment of finance. R. S. 1894, § 4166. 

See ante, §490, and_posif, § 1412 and notes. 

For treasurer's duties under the general law of 1867, see anfe, §§97, 103, and pos^, 
§ 1060 and notes. 

803. Duties of treasurer.— 113. The city treasurer of any such city 
at the taking effect of this act shall make settlement w^ith the city clerk 
for all moneys collected and disbursed by him, and thereupon a state- 
ment shall be prepared, which shall be signed by him and attested by 
such clerk, in which shall be shown the amount of mone3^s in his 
hands belonging to the general fund and each other fund of which 
separate accounts is required to be kept by law" or the ordinances of 
such city, and the total amount of all such funds. A particular de- 
scription shall also be given of all bonds and other securities and 
property in the hands of said treasurer belonging to said city. Said 
treasurer shall present such statements to the county treasurer, and 
forthwith pay over to him all the funds of such city in his hands as 
shown therein, and also deliver to him all the bonds, securities and 
other property described in such statement; and said county treasurer 
shall give a receipt therefor, showing the amount of money received 
on account of each fund, and the total amount received, describing the 
bonds, securities and other property received, which receipt said city 



§ 804 CITIES OF MORE THAN THIRTY-FIVE THOUSAND. 588 

treasurer shall deliver to the citv clerk, who shall issue a quietus 
therefor. R. S. 1894, § 4167. 

804. Settlements by treasurer — Collection of taxes. — 114. Said 
city treasurer shall also, at the taking effect of this act, make a settle- 
ment with the city clerk on account of the tax duplicate and delin- 
quent list which may then be in his hands for collection. He shall 
enter upon said duplicate and list, opposite the name of each person 
from whom he has collected any taxes, a statement of the fact show- 
ing the amount collected, and at the end of such duplicate and list 
the aggregate amount of all taxes of each kind collected by him shall be 
deducted from the aggregate amount of each kind of tax shown in 
said duplicate and said list, and the remainder of each kind of tax 
uncollected shall be stated, and the same shall be signed by said treas- 
urer and attested by the clerk. Said tax duplicate and delinquent list 
shall then be delivered by said treasurer to the county treasurer, who 
shall give him a receipt therefor, stating therein the amount of each 
kind of tax therein remaining uncollected and the aggregate of all 
such taxes, which receipt shall be filed with the city clerk. Said 
county treasurer shall thereupon proceed to collect the taxes contained 
in said duplicate and list in the same manner as he is required by law 
to collect taxes for state, county, township, road and other purposes 
upon the county tax duplicate and delinquent list, and shall make 
settlement on account thereof with the county auditor at the same time 
and in the same manner as he is required by law to make his settle- 
ments on account of the county tax duplicate. R. S. 1894, § 4168. 

805. Payment of money into treasury. — 115. Whenever by law, 
or the ordinance of any such city, a license or special tax, or sum of 
money other than taxes contained upon the tax duplicate, shall be re- 
quired to be paid by any person into the treasury of such city, such 
person shall obtain from the department of finance a statement show- 
ing the amount to be paid, and on what account, and present the same 
to the county treasurer, whose duty it shall be to receive and collect 
said amount, and give to the person paying the same a receipt show- 
ing the amount paid and on what account, which receipt such person 
shall deliver to the department of finance, w^ho shall thereupon issue 
to such person a license or quietus as may be proper. R. S. 1894, 
§ 4169. 

806. City treasurer to (leliver precepts. — 116. The city treasurer 
of any such city, on the taking effect of this act, as herein provided, 
shall deliver to the sheriff of the county, all precepts for the collection 
of street, sewer, drain and other assessments of like character which 
may be in his hands unexecuted; and thereafter all such precepts shall 
be directed and issue to such sheriff, who shall execute the same and 
make conveyances in execution of sales made by the city treasurer, the 
same in all respects as such precepts are required to be executed and 
conveyances made by such city treasurer, for which services such 
sheriff shall receive the same fees as are allow^ed by law to the city 
treasurer, to be paid in the same manner. R. S. 1894, § 4170. 



589 EXECUTIVE AND JUDICIAL OFFICERS AND DEPARTMENTS. § 807 

807. Assessments for taxatiou. — 117. Beginning with the year 
1894, and thereafter, the assessment and appraisement for taxation for 
stat€ and county purposes of all real and personal property and polls, 
subject to taxation within any such city shall be made pursuant to 
the provisions of the act of the general assembly of the state of In- 
diana, entitled "An act concerning taxation," approved March 6, 
1891, and all acts amendatory thereof and supplemental thereto, as 
the same shall have been equalized by the county board of review and 
the state board of tax commissioners, including all additions made 
thereto by said boards or either of them, and all assessments and ap- 
praisements made by the auditor of the county in which such city is 
situated shall be the basis on which the common council of any such 
city shall levy and assess the taxes for city purposes, which they shall 
deem it necessary to levy, within the limitation hereinafter prescribed 
and the taxes so levied shall become and continue liens upon the 
property upon which they are levied at the time, and in the manner 
and to the extent that taxes levied for state, county and other pur- 
poses, become and continue liens upon such property by virtue of the 
provisions of the acts herein referred to. [As amended. Acts 1897, p. 
211. In force March 8, 1897.] Burns' Supp. 1897, § 4171. 

See Taxation, E. S. 1894, chap. 108 (§§ 8408-8677) ; Burns' Supp. 1897, chap. 108 
(§ 8411, et seq.) ; Acts 1899, pp. 422, 430, 497, 516. 
See ante, § 212, et seq. 

808. Duty of county auditor. — 118. It shall be the duty of the 
auditor of the county in which any such city is situated to make out 
and deliver to the department of finance of said city in each year, be- 
ginning with the year 1894, a certificate, under the seal of the board 
of commissioners of such county, showing the aggregate assessment 
and valuation for taxation for state and county purposes, for the year 
in which such certificate is made, of all taxables, real and personal, 
and railroad property, in such city, and the number of taxable polls 
therein, as the same shall have been returned by the assessor of the 
township in which such city, or any part, is situated, and as equalized 
by the county board of review and state board of tax commissioners, 
which certificate shall be so made and delivered by said auditor im- 
mediately after the assessment and valuation of such property and 
polls has been completed and returned to his office. R. S. 1894, 
§ 4172. 

809. Iiery of taxes — Limit. — 119. Such department of finance 
shall lay such certificate before the common council of such cit}^ at its 
regular sitting next held after such certificates are received, and there- 
upon such common council shall proceed in the manner now pre- 
scribed by law, to levy such tax on the amount of property and polls 
shown in such certificate as may be deemed necessary by them to sup- 
ply the needs of such city during the ensuing year for city and other 
purposes for which taxes may be properly levied: Provided, however, 
That it shall be unlawful for the common council to lew a tax or 



§ 810 CITIES OF MORE THAN THIRTY-FIVE THOUSAND. 590 

taxes for any one year exceeding in the aggregate one dollar and 
twenty-five cents ($1.25) upon the hundred dollars of assessed and 
appraised value of the property subject to taxation in such city for the 
year in which the levy is made, as shown by the assessment returned 
to and on file in the office of the county auditor and by his certificate 
herein mentioned. [As amended, Acts 1897, p. 211. In force March 
8, 1897.] Burns' Supp. 1897, § 4173. 

810, Auditor to pnt taxes on duplicate.-— 120. The levies of taxes 
made as provided in the last section shall be certified by the depart- 
ment of finance under its seal, without delay, to the county auditor, 
and such auditor shall thereupon proceed to estimate, as he is now re- 
quired to do in reference to state, county, township, road and other 
taxes, the amount of tax chargeable according to the rate prescribed 
by such levies, to each person who is listed for any taxable property 
or poll in such city upon the assessment and appraisement of property 
and polls therein made for the year, in which such tax is levied, and 
returned by the assessor of the township in v/hich such city is situ- 
ated, and equalized by the county board of review and state board of 
tax commissioners, he shall enter the amount of the tax, including 
delinquent tax chargeable to each person against the name of such 
person, as it appears upon the tax duplicate of the county for such 
city for the current year, in the column in which are entered the cur- 
rent and delinquent state, county, township, road and other taxes 
with which such person is charged. The aggregate of all taxes with 
which such person is chargeable, including state, county, township, 
road and other taxes, shall be carried out and set down opposite the 
name of such person in a column of totals, and in the recapitulation 
of the duplicate now required by law to be made by him, he shall set 
down the aggregate of all taxes contained in the duplicate for such 
city, said duplicate shall thereupon be delivered to the treasurer of the 
county, as novf provided by law. R. S. 1894, § 4174. 

811, Notice by county treasurer., — 121. The county treasurer shall 
include in the notice now^ required by law to be given by him of the 
receipt of the tax duplicate for collection a statement of the amount of 
tax charged in such city, for city purposes, upon each one hundred 
dollars' valuation of the taxable property, and also for such purposes 
upon each taxable poll, and such notice shall be the only notice re- 
quired to be given of the fact of such taxes being in his hands for col- 
lection. [As amended. Acts 1897, p. 211. In force March 8, 1897.] 
Burns' Supp. 1897, § 4175. 

812, Collection of taxes — Delinquency.— 122. It shall be the duty 
of the county treasurer to receive and collect all taxes shown upon the 
duplicate of such city, for city purposes, the same as he is required by 
law to receive and collect the taxes shown thereon for state, county, 
township, road and other purposes, if one-half of the amount of such 
city taxes for the current year charged to any person, and the entire 
amount of delinquent city taxes, penalty, interest and costs charged 
to such person and unpaid, be paid on or before the third Monday of 



II 



591 EXECUTIVE AND JUDICIAL OFFICERS AND DEPARTMENTS. § 813 

April, the payment of the other half of such taxes for the current year 
may be postponed to the first Monday of November following, but if 
on or before the third Monday of April, payment be not made of that 
portion of the above specified amount, the entire amount of unpaid 
city taxes charged upon the duplicate to such person shall become due 
and be returned delinquent and collected as such, with like penalty, 
interest and costs as is provided where the first installment of state, 
county, township and road taxes are not paid by the time prescribed. 
If such taxes remain delinquent after the first Monday of November 
following, there shall be an additional penalty of six per centum added 
to all such taxes that become delinquent at the preceding April and 
November settlements, but a penalty of ten per centum only shall be 
added to the current delinquency occurring on the first Monday of 
November. After payment by any person of taxes charged to him, 
the treasurer shall give to such person a receipt in the form prescribed 
by law, which shall include all taxes paid by him, the city as well as 
other taxes. Any partial payment of either current or delinquent 
taxes shall be prorated among the different taxes charged to the per- 
son paying in proportion to the amount of such taxes respectively. 
[As amended. Acts 1897, p. 211. In force March 8, 1897.] Burns' 
Supp. 1897, § 4176. 

813. Delinquent tax, collection. — 123. If either installment, or 
any part thereof, of such taxes for such city purposes remain unpaid 
after expiration of the time limited for payment thereof, the county 
treasurer shall have the same power and be under a like duty to col- 
lect the entire amount of such taxes remaining unpaid by levy and 
sale of personal property and by suit as is granted to and imposed 
upon him for the collection of delinquent state, county, township, 
road and other taxes. [As amended. Acts 1897, p. 211. In force 
March 8, 1897.] Burns' Supp. 1897, § 4177. 

814. Settlement by county treasurer. — 124. The county treasurer 
shall at the time of making his annual settlement with the county 
auditor, on the third Monday of April, as novv^ required by law, make 
settlement with said auditor, for the amount with which said treas- 
urer is to stand charged on account of city taxes, in the manner pre- 
scribed for his settlement of state, county, township, road and other 
taxes, and for all of such city taxes appearing upon the tax duplicate, 
and not shown upon such settlement to be uncollected, said treasurer 
shall be held liable as having been collected and received by him. 
Immediately upon such settlement being made, the auditor shall make 
out a statement showing the aggregate amount of all current and de- 
linquent taxes for city purposes, including with the delinquent taxes, 
the penalties and interest thereon, which appear upon the tax dupli- 
cate for said city, the amount of such taxes, penalty and interest that 
remains uncollected at the time of such settlement, and the amount of 
each class, including penalt}^ and interest, that has been collected by 
said treasurer and appear upon the duplicate for such city; the amount 
thereof that has been collected by such treasurer, and the amount 



§ 815 CITIES OF MORE THAN THIRTY-FIVE THOUSAND. 592 

thereof that remains uncollected at the time of settlement. Said state- 
ment shall be signed and sworn to by said treasurer, and certified by 
the county auditor, under the seal of the board of commissioners, to 
be corrected abstracts of the treasurer's settlement on account of such 
city taxes. One copy of the first mentioned statement shall be deliv- 
ered by the county auditor to the department of finance of such city, 
who shall thereupon charge the amount shown thereby to have been 
collected to such county treasurer as cash in his hands. [As amended, 
Acts 1897, p. 211. In force March 8, 1897.] Burns' Supp. 1897, 
§ 4178. 

815. Payment of school taxes. — 125. The county treasurer, imme- 
diately upon such settlement being made, shall pay over to the treas- 
urer of the board of school trustees of such city, the full amount for 
which he is liable as shown by such settlement on account of school 
taxes, interest and penalty collected by him, for which he shall take 
a receipt from such treasurer, which receipt he shall deliver to the 
secretary of said board of school trustees, who shall give him a quietus 
therefor and credit him with the amount thereof, and charge such 
amount to the treasurer of the board. R. S. 1894, § 4179. 

816. Delinquent list, collection.— 126. The county auditor shall 
include in the delinquent list required by law to be made by him after 
the annual settlement with the treasurer on the third Monday of April 
the amount of all city taxes shown by such settlement to be uncol- 
lected, and carry the same out and include it in the total of all taxes 
due from the person liable therefor as shown in said list, and such 
list when delivered to the county treasurer, shall empower him and 
it shall be his duty to collect all delinquent city taxes embraced therein, 
in the same manner and with the same penalty and interest, as the 
state, county, township, road and other taxes contained therein. [As 
amended. Acts 1897, p. 211. In force March 8, 1897.] Burns' Supp. 
1897, § 4180. 

817. Settlement for delinquent taxes, — 127. On the first Monday 
of each year the county treasurer shall make settlement with the county 
auditor for the amount of delinquent city taxes, penalty and interest 
shown upon said delinquent list in the same manner as he is now re- 
quired by law to make in such settlement for delinquent state, county, 
township, road and other taxes collected by him, and upon such settle- 
ment, statements signed, sworn and certified to by said treasurer and 
auditor. In the same manner prescribed in section 124 of this act 
shall be prepared a statement showing the aggregate amount of city 
delinquent taxes, penalty and interest which had been contained in 
such delinquent list, the amount thereof collected and the amount 
still remaining uncollected;, a copy of which statement shall be trans- 
mitted to the department of finance as required with reference to the 
statements mentioned in section 124. [As amended. Acts 1897, p. 211. 
In force March 8, 1897.] Burns' Supp. 1897, § 4181. 

818. Payment of school delinquency, — 128. The county treasurer 
shall immediately thereafter pay to the treasurer of the board of school 



593 EXECUTIVE AND JUDICIAL OFFICERS AND DEPARTMENTS. § 819 

trustees of such city the full amount of delinquent school taxes, inter- 
est and penalty, shown by such statement to have been collected, and 
shall take a receipt therefor, which he shall deliver to the secretary 
of the board of school trustees, who shall give him a quietus therefor, 
and thereupon charge the treasurer of the board with the amount shown 
by such receipt to have been received by him. R. S. 1894, § 4182. 

819. Delinquent list of lands — Taxes charged. — 129. The county 
auditor in making out the list of lands and lots in such city returned 
and remaining delinquent for state, county, township, road and other 
taxes which he is required by law to make between the first Monday 
of November and first day of January in each year shall enter therein 
against the name of each person remaining delinquent on account of 
state, county, township, road and other taxes the amount of all delin- 
quent taxes for city purposes for which said lands and lots are liable, 
including taxes on poll and personality [personalty], and adding in- 
terest and a penalty of ten per centum thereon, and also the amount 
of all taxes for city purposes assessed for the current year, for which 
said lands and lots are liable, including taxes on poll and personalty, 
which said taxes shall be carried out with the taxes for state, county, 
township, road and other purposes, into one total. [As amended. 
Acts 1897, p. 211. In force March 8, 1897.] Burns' Supp. 1897, 
§ 4183. 

820. Sale of delinquent lots. — 130. Payment of such delinquent 
and current city taxes, with interest, penalty and costs, shall be en- 
forced by sale of the lands and lots liable therefor, or so much thereof 
as may he necessary, which sale shall be made by the county treasurer 
in the same manner, at the same time and place, and upon the same 
notice as is prescribed by law for the sale of lands and lots for the 
payment of delinquent state, county, township^ road and other taxes, 
the property to be offered for sale and sold for the payment of all 
taxes of every kind for which the same is liable, with interest, 
penalty and costs thereon, as one entire sum, and not separately, 
for said city taxes. Nor shall notice of the sale be given separate!}^ 
for the city taxes, but it shall be stated in the notice required to 
be given of the sale of the lands and lots for state, county, township, 
road and other taxes that the sale thereof will also be for the payment 
of the city taxes, which shall be the only notice required to be given. 
[As amended. Acts 1897, p. 211. In force March 8, 1897.] Burns' 
Supp. 1897, § 4184. 

821. Payment of bids — Guaranty, — 131. Payment of the bid, upon 
the sale of any such lands and lots, shall be enforced, so far as it re- 
lates to city taxes, by the same officer, and in the same manner, and 
with the same penalty and costs, as is provided by law for the enforce- 
ment of the payment of a bid made upon the sale of lands and lots for 
state, county, township, road, and other taxes alone. The guaranty 
required by law to be indorsed by the county treasurer upon each cer- 
tificate given by him for the purchase of lands and lots for state, 

CiT. AND To.— 38 



§ 822 CITIES OF MORE THAN THIRTY-FIVE THOUSAND. 594 

county, township, road and other taxes, shall in every case where such 
sale is made for city taxes, also apply to and embrace the amount of 
city taxes for which sale was made; and the holder of such certificate 
shall have the same remedy upon such guaranty as to the city taxes 
embraced therein that he has as to state, county, township, road and 
other taxes to which the same relates. [As amended, Acts 1897, p. 211. 
In force March 8, 1897.] Burns' Supp. 1897, § 4185. 

822. Laws applicable to sales.~132. All provisions of law in 
reference to the certificate to be issued to a purchaser of lands and 
lots upon sale for state, county, tovv^nship, road and other taxes; the 
effect of such sale and the rights of the purchaser; redemption there- 
from; the making of deeds on failure of redemption, and as to the 
force and effect of such deeds, for the quieting of titles acquired there- 
under; for transferring to the purchaser the original lien for the taxes 
for which the sale was made, and subsequent taxes paid, and for the 
enforcement of such lien by judicial proceedings, when the purchaser 
fails to acquire a valid title by virtue of the purchase; and as to the 
interest and penalties to be collected upon redemption from such sales 
before deed is made, or upon judicial proceedings to quiet the title or 
enforce the lien of the purchaser; and all other provisions of lav/ re- 
lating to levying, assessing, collecting and accounting for state, 
county, township, road and other taxes, shall, so far as the same are 
applicable, apply with like force and effect in case of city taxes in 
cities of the class referred to in this act. [As amended, Acts 1897, p. 
211. In force March 8, 1897.] Burns' Supp. 1897, § 4186. 

828. School and library tax laws revived. — 12. All laws or parts 
of laws relating to the levying and collecting of school and library 
tax repealed by §§ 117, 119, 121, 122, 124, 126, 127, 129, 130, 131 
and 132 of the original act and herein amended are hereby revived 
upon and after the passage of this act. Burns' Supp. 1897, § 4186a. 

824. Salary of county auditor. — -133. The county auditor, for all 
services required to be performed by him under this act, shall receive 
an annual salary of three hundred dollars (300) to be paid quarterly 
out of the funds of the city, upon allowance by the common council 
thereof. The county treasurer, for all services required to be per- 
formed by him under this act, shall receive an annual salary of one 
thousand dollars ($1,000), to be paid quarterly out of the funds of 
the city upon allowance by the common council thereof. He shall 
receive no percentage for receiving, collecting or disbursing any of 
the funds of such city, whether derived from taxes, current or delin- 
quent, or from special assessments, taxes, licenses or other sources. 
R. S. 1894, § 4187. 



Department of Public Health and Charities. 

825. Board of health and charities — Appointment — Salaries — 
Duties. — 134. The department of health and charities shall be under 



595 EXECUTIVE AND JUDICIAL OFFICERS AND DEPARTMENTS. § 826 

the control of three commissioners, who shall be practicing physicians, 
to be appointed by the mayor as hereinbefore provided. Said commis- 
sioners shall each receive a salary of one hundred dollars ($100) per 
year. Said commissioners shall have charge of all matters relating 
t-o public health and the enforcement of laws in relation thereto. Said 
commissioners shall elect one of their number registrar of vital statis- 
tics, who shall be secretary and executive officer of their board, and 
shall attend to the proper registration of births, marriages and deaths, 
and such other statistical information as the department may require. 
Said registrar of vital statistics shall receive for his services the sum 
of one hundred dollars ($100) in addition to his salary as health com- 
missioner. Said health commissioners shall nominate for appoint- 
ment by the department of public safety, as special sanitary officers, if 
in their judgment they deem it necessary, skilled and competent per- 
sons for live stock and meat inspectors and food inspectors, w^hose duty 
it shall be to inspect ail live stock, meat and food offered for sale for 
human food in such city, and to attend the public markets and care- 
fully watch over the same and prevent the selling, or offering to sell, 
for human food, any and all articles unfit for use, and said commis- 
sioners are hereby authorized to require from the department of public 
safety special detail of policemen or firemen to execute orders of such 
department of public health whenever needed. Said department of 
public safety shall detail policemen who shall be constantly subject 
to the orders of such department of health. In case of disagreement 
as to the number of sanitary officers required, between said two depart- 
ments, or as to the number or duration of service of such details of 
firemen and policemen, the mayor shall decide the question. R. S. 
1894, §4188. 

826. Preparation of ordinaiices. — 135. Said health commissioners 
are hereby authorized and directed to prepare ordinances for the pro- 
tection Qf public health, for securing the proper registration of births, 
marriages and deaths, and such other statistical information as the 
department may require, with penalties for their violation; for the 
removal and burial of the dead, and the destruction or the fumigation 
of infeci^ed property or premises, for the registration of plumbers and 
the inspection of plumbing and house drainage in all buildings, both 
public and private, erected after the passage of this act, and in all 
buildings, both public and private, erected prior thereto w- herein 
changes in or additions to the plumbing or drainage are to be made; 
for the appointment of an inspector of plumbing and house drainage, 
who shall be a practical plumber, who shall be required to pass an 
examination as to his qualifications by a board of three practical 
plumbers doing business and residing in such city, said board to be 
selected by the health commissioners of such city. Such ordinances 
shall be submitted to the council for passage as other ordinances. 
R. S. 1894, § 4189. 



§ 827 CITIES OF MORE THAN THIRTY-FIVE THOUSAND, 596 

AETICLE 4.— WATER-WOEKS TRUSTEES. 

SEC. 

827. Water-works trustees— Election— Duties and powers. 

827. Water-works trustees — Election— Duties and powers, — 136. 

In any such city in which water works have been constructed, or are 
now in process of construction or extension, or where water works 
shall hereafter be ordered, there shall be a board of three trustees to 
be known as the trustees of the water works, who shall have and pos- 
sess all the power and be under all the obligations and do and perform 
all the duties now conferred upon trustees of the water works undei 
and by virtue of an act of the general assembly of this state, entitled 
^'an act to authorize cities and incorporated towns to construct, main- 
tain and operate water works, issue and sell bonds to pay for such 
construction, repealing all laws in conflict with this act, and declaring 
an emergency," approved March 25, 1879, and all laws amendatory 
thereof and supplementary thereto. Such trustees shall be elected by 
the qualified voters of such city at the said city election to be held on - 
the first Tuesday of May, 1901, and every two (2) years thereafter, fl 
and shall hold their office for a term of two years. Whenever in such 
cities there is at present a board of water works trustees, elected by the 
people, they shall hold their office until noon of the first Tuesday after 
said election on the first Tuesday in May, 1901. For the purpose oi 
paying the expenses of managing and operating the water works in 
such city, and for making extensions and improvements, and paying 
the interest on any water works debt, thereon incurred in the build- 
ing thereof. The board of trustees of the water works in such cities 
shall have power to assess and collect from time to time, a water rent 
or charge of sufficient amount in such manner as they deem most eq- 
uitable, upon all tenants and premises supplied with water, and for 
the supply of boilers, locomotive engines, and all other purposes for 
which water may be supplied. Should there be any surplus after the 
payment of the costs of operation and maintenance, and the necessary 
extensions and improvements, and the interest on water works debt, 
if any, such surplus shall be set aside as a sinking fund for the ulti- 
mate payment of such debt. [As amended, Acts 1899, p. 138. In 
force February 27, 1899.] 



CHAPTER 5. 
CITIES OF MORE THAN TWENTY-THREE THOUSAND. 

AET. ART. 

1. Incoeporation and officees. 3. Executive and judicial officers and 

2. Legislative — Common council. departments. 

ARTICLE 1.— INCORPORATION AND OFFICERS. 

sec. . sec. 

828. Cities governed by this act. 832. Notice to officers elected. 

829. Elective officers— Election. 833. Oaths of officers— Bonds. 

830. Old officers, powers continued. 834. Officers not interested — Contracts. 

831. Vacancies. 835. Purchase of claims by officers. 

[Acts 1899, p. 270. In force March 3, 1899.] 

828, Cities governed by this act. — 1. That all cities of this state 
which had a population of more than twenty-three thousand and less 
than thirty-five thousand inhabitants as shown by the last preceding 
United States census, shall on and after the first day of July, 1899, be 
governed by the provisions of this act. Any city falling within the 
scope of this act shall be, and continue to be the same legal corpora- 
tion as heretofore, subject to the same liabilities heretofore incurred, 
and possessing the same rights which have heretofore accrued. All 
by-laws, ordinances and regulations not inconsistent with this act 
shall remain and continue in force until altered or repealed by the 
common council in conformity with the provisions of this act, but all 
by-laws, ordinances and regulations inconsistent with this act are 
hereby abolished on and after the taking effect of this act. 

See note, ante, § 382. 

Charter — Rules of construction. — The charter or statute by which a municipal cor- 
poration is created or governed is its organic law, and the rules applicable to the inter- 
pretation of constitutions may be used in the construction thereof. Newcomb v. City 
of Indianapolis, 141 Ind. 451. 

For rules of construction, see ante, § 45, general notes. 

Incorporation and org'anization. — For decisions relating to incorporation and or- 
ganization under the general law of 1867, see ante, § 46 and notes. 

Org-anization of municipal corporation— Validity of tested by quo warranto.— 
See ante, § 46 and notes. 

Incorporation— Presumption as to— Prescription— Judicial notice of.— See ante, 
§ 46 and notes. 

Amendments — Kepeal, etc. — The charter of a municipal corporation maybe amended 
or repealed at the pleasure of the legislature. Special charters may be amended by 
either general or special act. See ante, § 46, notes and cases. 

(597) 



§ 829 CITIES OF MORE THAN TWENTY-THREE THOUSAND. 598 

Municipal powers— Soyereign—Leg-islative— Judicial— ]S'ot liable for exercise or 

non-exercise of .—See ante, § 46 and notes. 
Municipal corporation defined.— See ante, § 46 and notes. 

829. Eiectiye officers — Election. — 2. The elective officers of sucli 
city shall be a mayor, city clerk, and councilmen as hereinafter pro- 
vided. An election in such cities shall be held on the first Tuesday 
in the month of May, 1902, and biennially thereafter for the election 
of mayor, clerk and councilmen: Provided, That on the first Tuesday 
in May, 1900, at an election which shall be then held for such pur- 
pose there shall be elected, three (3) councilmen at large by the voters 
of any such city, whose qualifications shall be as hereinafter pre- 
scribed and whose term of office shall expire at twelve o'clock noon 
on the second Tuesday in May, 1902: And provided further, That any 
vacancy in the office of councilman from any ward, or at large, existing 
before the time of the May election, 1902, shall be filled by appoint- 
ment of the mayor; said councilman to be of same political faith as 
his predecessor and to serve until the second Tuesday in May, 1902, 
and until his successor shall be elected and qualified. Such elections 
shall be held in conformity to and in accordance with the general 
election laws of this state, and with the laws for the making out of 
certificates and memoranda of the result, the delivery of the list of 
voters and the tally papers, the assemblage of inspectors or judges of 
elections as a board of canvassers and the duties of such board in 
reference to state elections: Provided, That such board in city elec- 
tions shall assemble in the room of the council [of such city on the 
day following] such election at ten o'clock a. m. The duties of the 
county clerk in reference to such state elections shall be performed by 
the clerk of such city. All special elections in such city shall be 
governed by the same provisions. The laws of this state in reference 
to contests after state elections and all other matters shall be applicable 
to such city elections as far as they are adapted to the same. 

City officers— Legislature can not appoint.— See ante, § 59 and note. 

Nature of office— Salaries — Allowances, etc.— See ante, § 59 and note. 

Officers— Duties— Liabilities.— See ante, § 59 and note. 

Election of officers— Validity of— Quo warranto.— See ante, § 59 and note. 

Officers— Jurisdiction of— Injunction— Mandamus.— See ante, § 59 and note. 

Removal of officers.— See ante, § 59 and note. 

Mayor— Under g-eneral law.— See ante, § 80 and note. 

For councilmen and other officers, under general law, see ante §§ 59-68 and notes. 

Municipal elections.— See ante, § 61, et seq., and notes. 

830. Old officers — Powers continued. — 3. On and after the first 
day of July, 1899, the common council, mayor, city clerk and all other 
city officers and employes shall possess the powers conferred by this 
act, and no others. Until then they shall have the power now and 
heretofore conferred by law. All officers created by the statutes of 
this state or ordinances of the city heretofore in force in conflict with 
this act are hereby abolished on and after said first day of July, 1899, 



599 INCORPORATION AND OFFICERS. § 831 

except as herein otherwise provided, but until that time the officers 
filling the same shall continue in office, and have and possess the 
powers and perform the duties now and hereafter conferred by law, 
and the members of the common council of such city heretofore elected 
shall hold their offices until their respective terms of office w^ould have 
expired under the laws heretofore in force: Provided ^ however, They 
shall not be removed from office except by impeachment as provided 
herein. In case such city, prior to the taking effect of this act, shall 
have commenced, by its proper officers, any proceedings or' undertak- 
ings of a public nature, which was lawfully commenced or undertaken, 
the same shall not be interrupted by the passage of this act, but it 
shall be taken up and carried forward by the proper officer or depart- 
ment as prescribed by this act, except that in case of public improve- 
ments of any sort, whether of sewers, streets, alleys, levees, public 
buildings, or any other matter of an executive nature, in which a con- 
tract has not at the time of the passage of this act been actually let 
and entered into, the executive department having charge of such 
matter shall not be bound, unless it so elects, by the previous proceed- 
ings, but may review the whole subject and modify, change or rescind 
all orders previously made in that behalf. The present officers of 
such city shall surrender the custody of all property, records and docu- 
ments of every nature whatsoever, to the appropriate officer or depart- 
ment entitled to the possession of the same under this act. 
See note, ante, § 59 et seq. 

831. Vacancies. — 4. In the event of a vacancy occurring in any 
elective office of said city from death, resignation or other cause, except 
mayor, it shall be the duty of the acting mayor within ten (10) days 
of such time to fill such vacancy by appointment for the unexpired 
term, said appointee to be of the same political faith as his predeces- 
sor, subject to the approval of the council. 

832. Notice to officers elected. — 5. The city clerk shall forthwith, 
after the execution of the certificate of election by the board of inspec- 
tors of elections of said office, as hereinbefore provided, notify every 
person so elected of the time when he must qualify, either by personal 
service or leaving copy at his usual place of residence, and shall make 
return of such service, and file the same in his office. 

833. Oaths of officers — Bonds. — 6. Every elective officer of such 
€ity shall before entering upon the duties of his office, take and sub- 
scribe an oath to be indorsed on the back of his certificate of election, 
and every appointive officer shall likewise take such oath, to be in- 
dorsed on the back of his certificate of appointment, before some offi- 
cer authorized to administer the same, to support the constitution of 
the United States and the constitution of the state of Indiana, and to 
faithfully and honestly discharge all his official duties, such oath to 
be filed with the city clerk. Each of said officers, except the mayor 
and members of the common council, shall likewise execute a bond 
with surety, to be approved by the mayor, payable to such city in 



§ 834 CITIES OF MOEE THAN TWENTY-THREE THOUSAND. 600 

such penal sum as said council may enact by ordinance covering such 
cases, conditioned for the faithful performance of the duties of his 
office, and the payment of all moneys received by him as such officer 
to the proper person, such bond to be filed v/ith the head of the de- 
partment of finance. Any person who shall not file his oath, or oath 
and bond, as the case may be, with the proper officer, within ten days 
after the beginning of the term for which he is elected, or appointed, 
shall be deemed to have refused to serve. 
See note, ante, § 113. 

834. Officers not interested — Contracts. — 7. No member of the 
council, nor any officer, clerk or deputy, or emploj^e of such city shall, 
either directly or indirectly, be a party to, or in any manner interested 
in any contract or agreement, either with such city, for, any matter, 
cause or thing, or by which any liability or indebtedness is in any 
way or manner created or passed upon, authorized or approved by said 
council, or either of them by any officer, board, clerk, deputy or em- 
ploye of such city. No officer, employe, agent or servant of any cor- 
poration, holding or operating under, a franchise granted by such 
city, or having any contract with such city, shall be eligible to hold 
any office in such city under this act. And any officer of such city 
accepting any office in or employment by any such corporation, shall 
thereby vacate such city office. Any contract in contravention of the 
foregoing provisions shall be absolutely void. Whoever shall know- 
ingly violate the provisions of this section shall be fined not more than 
one thousand dollars ($1,000.00), to which may be added imprison- 
ment for any period not exceeding one (1) year. 

See ante, § 122, and post, § 1420 and notes. 

835, Purchase of claims by officers. — 8. No councilman, or other 
officer, clerk, deputy or employe of such city shall purchase, either 
directly or indirectly, any bond, order, claim or demand whatsoever 
against such city, during his continuance in office or employment 
for any less sum than the amount specified therein, and any bond, 
order, claim or demand so purchased by any such person, in contra- 
vention of the foregoing provision, shall be forfeited to such city, and 
no action shall ever be maintained thereon. Gifts and the acquire- 
ments of equitable interests shall be deemed to be within the meaning 
and scope of the provisions of this section. 

ARTICLE 2.— LEGISLATIVE— COMMON COUNCIL. 

Meetings public. 
City clerk — Duty. 
Ordinances — Signing — Appropria- 
tions. 
Passage of ordinances. 
Publication of ordinances. 
Approval of ordinances — Veto. 



SEC. 




SEC. 


836. 


Legislative authority. 


843. 


837. 


Wards— Change of boundaries. 


844. 


838. 


Councilmen — Terms . 


845. 


839. 


Qualifications of councilmen. 




840. 


Expulsion of councilmen. 


846. 


841. 


Meetings of council— Quorum. 


847. 


842. 


Mayor to preside. 


848. 



601 


LEGISLATIVE -COMMON COUNCIL. § 06 


-EC. 

849. 


Recording of ordinances. 


SEC. 

860. 


Refunding bonds. 


850. 


Powers of council generally. 


861. 


Warrants— When not issued. 


851. 


Penalties imposed. 


862. 


Interest. 


852. 


Imprisonment. 


863. 


Continuation of appropriations and 


853. 


Executive and administrative duties. 




tax levy. 


854. 


Investigating departments. 


864. 


Boundaries and annexation. 


S55. 


Impeachment— Removal . 


865. 


Remonstrance — Appeal — Proceed- 


Sd6. 


Taxation. 




ings. 


857. 


Loans — Limit. 


866. 


Parts of cities and towns not to be 


358. 


Bonds— Issue and sale. 




annexed. 


859. 


Temporary loans. 


867. 


Disannexation of territory. 



836. Legislative aEthority. — 9. The legislative authority of the 
city shall be vested in a common council. 

For decisions and interpretation of statutes relating to the powers of the common 
council under the general law of 1867, see notes to ante^ §§ 114-211. 

837. Wards — Change of fooimdaries. — ^10. Such city shall be di- 
vided by the common council, by ordinance, into six (6) wards: Pro- 
vided, That whenever such city has a main business street dividing 
the city into nearly equal parts, three (3) of such wards shall be 
located on either side of said main business street, the lines dividing 
such wards to extend at right angles from said main street to the 
limits of said city, the three (3) wards to be of as compact and con- 
tiguous territory and as nearly equal population as practicable. It is 
made the duty of the common council of such city, prior to the city 
election in 1902, to readjust the ward or common council boundaries 
in such city in accordance with the provisions of this act, and eyevj 
sixth year thereafter a new readjustment may be made, but no oftener, 
unless the same is made necessary by the annexation of new territory, 
in which case the same may be done at any time by an ordinance 
passed by a two-thirds vote of the council. But such new territory 
may be added to any existing ward or wards by ordinance of the 
council. 

Creation of wards— Judicial notice of existing* wards.— See ante, § 53. 

838. Coiincilmeii — Terms. — 11. Each ward shall elect one (1) 
councilman at the city election to be held the first Tuesday in May, 
1902, as hereinbefore provided for, and the whole city shall elect three 
councilmen at large, whose terms of office shall commence at twelve 
o'clock noon on the second Tuesday of May, 1902, and shall continue 
until the same hour of the same day, week and month of the second 
year thereafter. And biennially thereafter an election shall be held 
in said city for the election of a councilman for each ward in any such 
city, and three (3) councilmen at large for the whole city whose terms 
of office shall commence at tw^elve o'clock noon on the second Tuesday 
of May follow^ing such election, and shall continue until the same 
hour of the same day, week and month of tlie second vear thereafter. 



§ 839 CITIES OF MORE THAN TWENTY-THREE THOUSAND. 602 

Provided, That all officers chosen at the first general election after the 
taking effect of this act shall commence their official terms at the ex- 
piration of the terms of their respective predecessors as hereinbefore 
provided. 

839. Qualifications of coimciliiien. — 12. No person shall hold the 
office of councilman from any ward unless he is at the time of his 
election a resident and voter thereof; a removal of residence from such 
ward shall vacate his office. No person shall hold the office of coun- 
cilman at large unless he is a resident and voter of such city. 

840. Expulsion of councilmen. — 13. The common council shall 
have the power to expel any of its own members for violation of 
official duty, and to declare the seat of any member vacant by reason 
of his disability to perform the duties of his office. The council may 
adopt its own rules to govern such cases, but a two-thirds vote shall 
be required to expel a member or vacate his seat under this section. 

See note, ante, § 119. 

841. Meetings of council — Quorum. — 14. The members of the com- 
mon council shall hold their first regular meeting on the first Monday 
of July, 1899, at 7:30 o'clock p. m., in the council chamber. The 
council shall thereafter meet not less than once a month, and as much 
oftener as their rules may require. Special meetings may be held on 
the call of the mayor, or on such other calls as may be provided for 
by rules. A majority of all the members elect shall constitute a 
quorum. It shall require a majority vote of all members elect to pass 
an ordinance. Wherever it is provided in this act that an ordinance 
shall be passed by a two-thirds vote the same shall be construed to 
mean two-thirds of all the members elect. 

See notes, ante, § 114. 

842. Mayor to preside. — 15. It shall be the duty of the mayor 
to preside at all meetings of the common council, and in his absence 
for any cause, the council shall choose a presiding officer pro tern, 
from their members. 

843. Meetings public. — 16. All meetings of the common council 
shall be public. 

844. City clerk— Duty.— 17. The city clerk shall be the clerk of 
the common council. It shall be his duty to keep the files and papers 
thereof, to make and keep an accurate minute and journal of the pro- 
ceedings, to enter the ayes and noes of the passage of every ordinance 
and resolution in full, and on all other votes whenever requested to do 
so by two members. 

For duties of city clerk under the general law of 1867, see ante, §§86, 87 and notes. 

845. Ordinances— Sig:ning— Appropriations.— 18. All ordinances, 
orders, resolutions and motions for the government or regulation of 
such city, and all ordinances for the appropriation of money shall 
originate in the common council. No appropriation shall be made 



603 LEGISLATIVE COMMON COUNCIL. § 846 

for the payment of money otherwise than by ordinance, specifying by 
items the amount thereof, and the department for which such appro- 
priation shall be made. The council may prescribe its own rules. 
No ordinance, order or resolution shall become law, or operative until 
it has been signed by the presiding officer thereof, and approved in 
writing by the mayor, or passed over his veto, as provided in this act, 
and whenever the same may be necessary, promulgated according to 
law . 

846. Passage of ordinances. — 19. No ordinance shall be passed on 
the same day, or the same meeting that it is introduced, except by 
unanimous consent ; and then only in case there are present and vot- 
ing at least two-thirds of all members of the council-elect. 

See notes, ante, §§ 117, lUa, 118, 124. 

84:7, Publication of ordinances. — 20. Every ordinance imposing 
a penalty or forfeiture for the violation thereof shall, before the same 
shall take effect, be published once each week for two (2) weeks con- 
secutively in some newspaper printed in the city: Provided-, That in 
case of insurrection, riot, pestilence, conflagration or other public 
necessity requiring immediate operation of such ordinance, it shall 
take effect as soon as proclamation is made thereof by the mayor, and 
posted in five (5) public places in each of the wards of such city: 
Provided further, The common council shall have discretionary power 
to direct the publication of any ordinance in a daily newspaper, and 
the publication thereof for one day each in any two consecutive weeks 
in any daily paper shall be deemed sufficient to allow the same to take 
effect: Provided further , That whenever any city shall publish any of 
its ordinances in book or pamphlet form, such publication shall be of 
itself sufficient publication, and such ordinance or ordinances shall 
take effect two weeks from the date of publication appearing upon the 
said books or pamphlet, and such publication in book or pamphlet 
form, if the same shall purport to be printed under the authority of 
the common council of such city shall be presumptive evidence in all 
courts and places of the ordinances therein contained, and of the date 
of adoption, and that the same are properly signed, attested and re- 
corded, and approved by mayor. 

See notes, ante, §§ 82, 87, 117, 118, 124. 

848. Approval of ordinances — Yeto. — 21. Every ordinance, order 
or resolution of the common council shall, immediately upon its en- 
rollment, attestation and signature by the clerk, be' presented by him 
to the mayor, and a record of the time of such presentment kept by 
the clerk. If the mayor approves it he shall sign it and it shall be- 
come a law. If he does not approve it he shall return it to the clerk 
with his objections in writing, within ten (10) days after receiving it, 
and the clerk shall present the same to the common council at its next 
meeting. It shall be the mayor's official duty to express in writing 
his approval or disapproval, as hereinbefore provided. If for any 



§ 849 CITIES OF MORE THAN TWENTY-THREE THOUSAND. 604 

reason the mayor fails to discharge his dut}^ within the time named, 
by approving or disapproving the same, in writing, the same shall be 
deemed equivalent to a disapproval, and in all cases of disapproval by 
the mayor the same shall not become a law unless the body in which 
the measure originated within thirty (30) days after the time named 
for the mayor's action, again pass the same by a majority vote of all 
members of the council-elect. 

849. Recording of ordinances. — 22. All ordinances shall, within 
a reasonable time after their approval by the mayor, or their passage 
over his veto, be recorded in a book for that purpose kept b}^ the city 
clerk. Such record shall include the signature of the presiding offi- 
cer, attestation of clerk, and the mayor's written approval or dis- 
approval, and memorandum of its passage over his veto. Such record 
or certified copy thereof shall be presumptive evidence of the going 
into effect of such ordinance. On the passage of any ordinance or 
resolution by the council the yeas and nays shall be taken and entered 
in full on the journal. 

See notes, ante, §§ 117, 124. 

850. Powers of council generally. — 23. The common council 
shall have power to enact ordinances for the following purposes: To 
provide a corporate seal, with appropriate device for such city, to be 
affixed to all instruments or writings needing authentication. To fix 
the salaries or compensation of the various officers and employes of 
such city, except where a different provision is made in the act upon 
this subject: Provided, That no member of the common council shall 
be allowed more than one hundred and fifty dollars ($150.00) for each 
year of his service as such member, nor shall any salary be changed 
after the election or appointment of a person to an office until his term 
expires or his office is vacated. To protect all city property, real and 
personal. To provide for the punishment of contempt and disorder 
in the rooms of the council and of the police court. To authorize a 
census of the city. To receive gifts, donations, bequests and public 
trusts, and to agree to conditions and terms accompanying the same, 
and bind the corporation to carry them out. 

PUBLIC COMFORT AND HEALTH. 

To declare what shall constitute a nuisance, to prevent the same, 
require its abatement, authorize the removal of the same by the proper 
officers, and provide for the punishment of the person or persons caus- 
ing, continuing or suffering the same to exist, and to assess the ex- 
penses of its removal against such person or persons, and to provide 
for collecting such expenses either by placing the same on tax dupli- 
cate or by suit. To regulate or prohibit the use of hand organs or in- 
struments of any annoying character or other music of itinerant per- 
formers in the streets, alleys or public places of such city. To au- 
thorize the cleaning and purification of water and v/ater-courses by the 



605 LEGISLATIVE COMMON COUNCIL. § 850 

board of public works; to prevent encroachment or injury to the banks 
thereof, or the casting into the same of offal, dead animals, logs, rub- 
bish, dirt, or impure liquids of any kind whatever. For the purpose 
of this paragraph jurisdiction is hereby conferred upon said city for 
ten miles from the corporate limits thereof. To regulate the location 
and management of starch factories, glue factories, renderies, tallov/ 
candleries, bone factories, soap factories, tanneries, founderies, 
slaughter houses, breweries, distilleries, livery stables and of all other 
establishments of which the business or trade may become noxious or 
injurious to public comfort or health, to prohibit the erection of such 
buildings or the continuance of such noxious or injurious occupations 
therein whenever the public comfort or health requires it. For the 
purpose of this paragraph such city is hereby given jurisdiction 
for four miles from the corporate limits thereof. To prevent or 
regulate the use of fire-arms, fire-works, bonfires or other things or 
practices tending to endanger persons or property. To regulate 
and prohibit the running at large of cattle, horses, swine, 
fowls, sheep, goats, dogs or other animals; to authorize the im- 
pounding, keeping, sale and redemption of such animals when found 
in violation of the ordinances in such cases provided. To prevent the 
deposit of any unwholesome substance either on private or public 
property, compel its removal to designated points, and to require slops, 
garbage, ashes and other waste or unwholesome material to be removed 
to designated points, or to require the occupants of premises to place 
them conveniently for removal. For the purpose of this paragraph juris- 
diction is given such city four miles from the corporate limits. To 
compel the occupants of any premises, buildings or out-houses situ- 
ated in said city or within four miles of the corporate limits thereof 
when the same has become filthy or unwholesome, to abate or cleanse 
the same, and to authorize the same to be done by the proper public 
officers, and to assess the expense thereof against such property. To 
regulate or prevent the storage of gunpowder, tar, pitch, resin, coal 
oil, benzine, turpentine, hemp, cotton, nitro-glycerine, dynamite, 
giant powder, petroleum, gasoline or gas, or any product thereof, or 
any other explosive or combustible material or any material which may 
seem dangerous. To regulate the location and management of ceme- 
teries or burial places with or without such city, and to protect the 
same and to provide for the sanctity of the dead. To regulate or pro- 
hibit the interment of bodies; to authorize the removal of bodies now 
or hereafter buried, or of cemeteries to some other proper place. For 
these purposes such city shall have jurisdiction for four (4) miles 
from the city limits. To establish quarantine regulations. To author- 
ize the removal or confinement of persons having infectious or pesti- 
lential diseases. For the' purpose of this paragraph and the preced- 
ing paragraph jurisdiction is given such city for four (4) miles from 
the corporate limits. To regulate or prohibit the ringing of bells, 
crying of goods or sounding of steam whistles. To direct the location 
and regulate the management of all public markets and market phioes. 



§ S50 CITIES OF MORE THAN TV.'ENTY-THREE THOUSAND. 606 

whether established by the city or by private individuals; to prevent 
the offenses of regrating and forestalling. To regulate and require 
reports and records of births and deaths, and to make such require- 
ments as may be deemed necessary to prevent the spread of contagious 
or infectious diseases. To authorize and require the inspection and 
condemnation, if unwholesome, and to regulate the sale of meats, 
poultry, fish, butter, oleomargarine, cheese, lard, vegetables, and all 
other food or provisions. To regulate the selling, weighing, measur- 
ing of hay, wood, coal, coke and all other articles sold hj weights 
and measures, and to require dealers to keep honest weights and meas- 
ures, and to provide for their inspection and selling. To authorize 
and require the inspection and licensing of steam boilers and ele- 
vators, and to prohibit their use when unsafe or dangerous or without 
license. To define fire limits in such city, and the character of build- 
ings which are forbidden to be erected within such limits, and to pro- 
hibit the erection of buildings in such city without a license first ob- 
tained therefor, and to regulate the construction of buildings to pre- 
vent the spread of fire. To authorize and require the inspection of 
buildings and structures erected or to be erected, or in the process of 
erection. To authorize the license therefor to be revoked, and the 
condemnation thereof, and of any building already erected, in whole 
or in part, either by ordinance fixing the method of such condemna- 
tion, or by appropriate action in the name of such cit}^, to be brought 
in any court of competent jurisdiction for such purpose when danger- 
ous or insecure in the opinion of the department of public works, and 
to authorize the same to be taken down within a specified time by the 
owner thereof, or in default thereof to authorize the same to be taken 
down at the owner's expense, or in case of an emergency to authorize 
the same to be taken down by the department of public vrorks, with- 
out delajnng for the owner to do so. To compel persons about to un- 
dertake dangerous improvements to execute bond of sufiicient sureties, 
conditioned that the owner or contractor will pay all damages which 
may be sustained by any person or property from such work. To make all 
regulations v\'hich may be deemed expedient for the promotion of health 
or suppression of disease. To regulate the construction of chimneys, 
smoke stacks, hearths, ovens; the erection of stoves and stove-pipes, 
boilers and apparatus used in buildings or other places, and cause 
the same to be removed or made secure when considered dangerous. 
To compel owners and occupants of houses and buildings to make 
scuttles in the roof thereof, with stairs or ladders leading to the same, 
and to compel the erection of fire escapes. To authorize and require 
the inspection of gas pipes, water pipes, plumbing, drainage, sewage 
and electric lines or wires on private property or elsewhere; to compel 
them to be repaired or made secure by the owner or occupant, and on 
failure of such owner or occupant to do so to authorize or require the 
gas or electric current to be shut off from the same until such repairs 
are made. To regulate and prohibit the keeping of any lumber yard 
and the placing or piling of any lumber, wood or other combustible 



607 LEGISLATIVE COMMON COUNCIL. § 850 

material within the fire limits. Also to require and regulate the use 
of smoke consumers. To require the owners of real estate to cut and 
remove weeds and other rank vegetation growing thereon; and in de- 
fault thereof to cause the same to be done at the expense of such city 
and make the cost thereof a lien on such real estate and provide for 
the enforcement of such lien and the collection of the same. 



STREETS. 

To prevent immoderate or careless driving or riding. To regulate 
the use of streets and alleys by vehicles, and designate the kind of 
conveyances and vehicles which may not use designated streets, which 
have been improved, together with hours for the use of such streets by 
certain specified classes of vehicles. To prevent the incumbering of 
streets, alleys, squares, sidewalks and crossings with vehicles, horses, 
or any substance or material interfering with the free use of the same. 
To regulate the speed of horses, wheeled vehicles, cars and locomotives. 
To regulate and protect all bridges, culverts, tunnels, viaducts, aque- 
ducts, sewers, canals and hydrants, wholly or partly in said city, and to 
prohibit digging in such streets, alleys or public places, or in any way 
injuring, disturbing or making holes in the surface thereof. To reg- 
ulate the use of sidewalks and prohibit the use of vehicles thereon, 
and regulate all structures in, under or over the same, and to require 
the owner or occupant of premises to keep the sidewalks in front of 
the same free from snow and other obstructions, and to prescribe 
hours for cleaning the same. To regulate and prevent the throwing 
or depositing of sweepings, dust, ashes, offal, dirt, garbage, paper, 
hand bills, dirty liquids or any other material into any streets, alley 
or public places. To regulate and prevent the use of streets, side- 
walks and public places for signs, sign posts, awnings, awning posts, 
poles, horse troughs, steps, railings, entrances, racks, posting hand 
bills and advertisements, and displays of goods, wares and merchan- 
dise. To regulate and prohibit the exhibition or carrying of banners, 
placards, advertisements or hand bills on the streets, alleys or public 
places. To regulate and prevent the flying of flags, banners or signs 
across the streets, or from houses. To regulate the numbering of 
houses and lots, and to compel the owners to renumber the same, or, 
in default thereof, to authorize and require the same to be done by the 
department of public works at the owner's expense, such expense to 
constitute a lien upon the property, and enforceable as may be pro- 
vided by ordinance. To regulate or change the name of streets and 
parks. To regulate the making of private connections with sewer, gas 
and water pipes, and to compel owners of property to bring such con- 
nections inside the curb of streets before permanent improvement 
thereof, and in default of the owners making such connections, to au- 
thorize the city to do so at the owner's expense, and to make such ex- 
pense a lien on the property, and collectible in the same manner that 
expenses for sprinkling streets are collectible. 



§ 850 CITIES OF MORE THAN TWENTY-THREE THOUSAND, 608 

OCCUPATIONS. 

To regulate, license and tax street cars, telephone and telegraph 
companies, the use of coaches, hacks, drays and all other vehicles 
for the transportation of passengers, freight or other articles to or from 
points within said city for hire or pay. To regulate license, tax, re- 
strain or prohibit theatrical and all other exhibitions, shows or enter- 
tainments for which money is demanded or received: Provided, That 
lectures on scientific, historic, benevolent, artistic, religious or literary 
subjects, and apparatus for the elucidation of the same and specimens 
of fine art shall not be deemed to be within this provision. To license, 
tax, regulate or prohibit runners at railroad stations and other places 
for stages, cars, public houses, for other things or persons. To regu- 
late the sale of all kinds of property at auction in the streets, stores, 
shops or elsewhere in the city, and to license auctioneers. To license, 
tax, regulate and prohibit the supply, distribution and consumption 
of artificial and natural gas, and to fix the prices thereof, and to regu- 
late the laying of mains and pipes and to designate the streets and 
alleys through which the same shall be laid and maintained, and to 
compel, by ordinance, the extension of any such mains, pipes and 
electric lines, and the supply of gas, water and electricity. To license, 
tax, regulate, suppress and prohibit hawkers and itinerant dealers, 
peddlers and pawnbrokers, and to revoke such license at pleasure. To 
license, tax, and regulate public hackmen, draymen, omnibus drivers, 
carters, cabmen, porters, expressmen, bill posters and all other per- 
sons pursuing like occupations, and to prescribe their compensation. 
To license, tax and regulate or prohibit all inns, taverns, hotels, res- 
taurants or other places used or kept for public entertainments. To 
license, tax and regulate the selling or giving away of any spirituous, 
vinous or malt liquor, and to tax, license and regulate places where 
such liquors or either of them are manufactured or stored, or where 
such liquors or either of them are to be used on the premises where 
given away, sold, stored or manufactured; but such license shall not ex- 
ceed the amount provided by the laws of this state for other cities thereof. 
To tax, license and regulate distilleries and breweries, and the depots or 
agencies established in said city of all breweries and distilleries; but 
such license shall not exceed the amount of one thousand ($1,000) 
dollars for each distillery, brewery, depot or agency established in said 
city. For the purpose of this section jurisdiction is given such city for 
four (4) miles from its corporate limits. To regulate and license lumber 
yards, livery stables, and public scales. To tax, license and regulate 
second-hand and junk stores, and to forbid their purchasing or receiv- 
ing from minors any article whatever without the consent of their 
parents or guardians. To license, tax, regulate and prohibit the keep- 
ing or harboring of dogs. To license, tax, regulate and prohibit dairies 
and keeping of milch cows. To license, tax and regulate wheeled ve- 
hicles: Provided, That the funds derived therefrom shall be applied 
only to the maintenance and repair of streets and alleys. To license, 



609 LEGISLATIVE COMMON COUNCIL. § 850 

tax and regulate branch stores or establishments and all other con- 
cerns established in said city for temporary business only. To license, 
tax and regulate stationary engineers. 

MORALS. 

To preserve peace and good order, prevent vice and immorality, 
quiet riots and dispel disorderly assemblages. To suppress gaming 
and gaming houses, and places and houses of ill-fame or assignation, 
or houses kept for any immoral purposes. To prohibit and destroy 
any instruments and devices of gaming, and to restrain fraudulent 
practices. To license, tax, regulate, restrain or prohibit all tables, 
alleys, machines, devices or places of any kind for sports or games. 
To regulate the time and place of, restrain or prohibit bathing in the 
rivers or public waters of such city. To direct the location and man- 
agement of public bath houses, to license the same or to require the 
same to be closed, if deemed expedient. To restrain and punish 
vagrants, mendicants, street beggars, common prostitutes and their 
associates, thieves and criminals, or persons known or reputed to be 
such. For the purposes of the last five paragraphs such city is given 
jurisdiction for four miles from the limits thereof. To prohibit cruelty 
to children or animals. 

DRAINAGE. 

To keep open rivers, streams or water-ways, prevent the waters 
thereof from pollution; jurisdiction for these two purposes being given 
such city for ten miles from its corporate limits. To provide for 
change in the course of streams, rivers, and water-ways passing 
through or bordering upon the corporate limits thereof, and to author- 
ize the exercise of the power of eminent domain, either within or 
without such city, for the purpose of securing a new course for such 
streams, river or water-way. To provide on what terms real estate in 
such city may be drained or sewered by means of surface or under 
drains or sewers over and across other real estate therein, or within 
four miles thereof, whether within or without the limits of another 
municipal corporation, and to provide the methods of assessing the 
property benefited thereby and collecting such assessment to pay for 
the costs and uses thereof. 

RAILROADS. 

To secure the safety of citizens and others in the running of trains 
in or through such city, to require persons or corporations owning or 
operating railroads, to fence their respective railroads, to construct 
cattle-guards, street crossings and viaducts and public roads and to 
keep the same in repair and safe condition for persons on foot, in 
vehicles, or otherwise; to construct and maintain gates, and to keep 

CiT. AND To.— 39 



§ 850 CITIES OF MORE THAN TWENTY-THREE THOUSAND. 610 

flagmen at railroad crossings, and provide protection against injury 
to persons or property from the operation of said railroads; to authorize 
and require railroad companies to change the location, grade and 
crossings of their respective railroads; to compel them to raise or lower 
their railroad tracks to conform to any grade which may be established 
by such ordinance, to compel persons or companies owning or operat- 
ing railroads to construct bridges, viaducts or tunnels, and approaches 
thereto, across their respective railroads or rights of way at street or 
alley crossings; to compel railroad companies to make and keep open 
and in repair ditches, drains, sewers, culverts along and under their 
respective tracks; to require railroad corporations or persons owning 
or operating railroads to keep gutters and street crossings clean along 
their right of way; to prohibit the laying of any railroad track across 
any street or alley or public place without permission first obtained 
therefor from the common council, and to provide for the taking up 
and removing any track so laid without notice, and charge the ex- 
pense thereof against the offending person or corporation; to require 
any person or company owning or operating any railroad to take up 
and change the location of any railroad track or switch heretofore or 
hereafter laid within the limits of said city. 



PUBLIC PROPERTY. 

To regulate and protect, except as otherwise herein provided, fire 
engines, hose, hook and ladders and all other property or apparatus 
belonging to or used by the police or fire department, and to prevent 
interference with the members of the police and fire departments while 
on duty. To authorize the closing of any street, alley or public place, 
or part thereof, whenever the public safety may require. To authorize 
the alienation and conveyance of any property, real or personal, be- 
longing to such city: Provided, That no such property shall be sold 
until the same has been appraised by three disinterested freeholders 
of such city, appointed by the judge of the circuit court in the county 
where such city is located, neither of said appraisers to be officers or 
employes of such city, and their sworn valuation, in writing, returned 
to the mayor; no sale or conveyance shall be made for a less sum than 
such appraisement, and in the case of real estate only by a two-thirds 
vote of the common council. To regulate pounds, market houses, 
market places, houses of refuge, pest houses, hospitals, dispensaries, 
engine houses and all other public city institutions. 

MISCELLANEOUS. 

To regulate the building of party walls and partition fences, pre- 
scribe in what proportion adjoining owners shall bear the expense of 
the same, in what manner such expense shall be levied and collected, 
and to define the terms upon which partition walls already established 



611 LEGISLATIVE COMMON COUNCIL. § 851 

may be used by adjoining owners. To carry out the objects of the 
corporation not hereinbefore particularly specified: Provided, That 
such ordinances are not inconsistent with the laws of the state. The 
common council shall have power to make other by-law^s and ordi- 
nances not inconsistent with the laws of this state, and necessary to 
carry out the objects of the corporation, and to enforce the observance 
of all by-laws and ordinances, by enacting penalties for their violation 
not exceeding one hundred dollars (§100.00) for any offense; which 
may be recovered in an action at law, with costs, as they may deem 
right and proper. 

Powers of common council.— See ante, §§ 124, 404 and notes. 

3Iunicipal powers— Mode of exercise— Municipal contracts— Municipal property, 
etc. — See ante, § 124 and notes. 

Leg-islative and ministerial powers — Police power.— See ante, § 124 and note. 

Actions— Statute of limitations, etc.— See ante, § 124 and note. 

Ordinances— Enactment, amendment, repeal, validity, invalidity and construc- 
tion of, etc.— See ante, §§ 117, 124 and notes. 

Resolution and rules of council.— See ante, §§ 116, 124 and notes. 

Special subjects— Powers of council to leg-islate concerning*. — For special subjects 
under the general law over which council has power to legislate, and the decisions of 
the courts relating thereto, see ante, § 124 and notes. 

851, Penalties imposed, — 24. In every ordinance which the 
common council shall pass there may be imposed a penalty for the 
violation or non-performance thereof. This penalty may be either a 
forfeiture of money or a fine or imprisonment or both of the last two: 
Provided, That no penalty or fine shall exceed ^yq hundred dollars 
($500.00) and no imprisonment shall exceed six (6) months for one 
offense. 

852, Imprisonment. — 25. The city council shall have power to pro- 
vide by ordinance for imprisonment for any person against whom a 
penalty, fine or cost for violation of any penal Ordinance shall have 
been adjudged until such fine, penalty and costs are fully paid or re- 
plevied; also to compel the enforcement of manual labor by such de- 
fendant and by persons sentenced to imprisonment, by the use of suf- 
ficient force and means. 

See notes, ante, §§ 118, 211, and i^osi, §§ 1237, 1383. 

A penalty is not a debt in the sense of the constitution. See ante, § 12 and note. 

853, Executive and administrative duties. — 26. Whenever any 
executive or administrative function shall be required to be performed 
by any ordinance or resolution of such common council, the same 
shall be performed by the proper executive department and not by 
said council. No new department shall be created; said ordinance 
shall designate the department which is to perform the duties there- 
under, but if designation is not made, either by statute or ordinance 
or resolution, the mayor shall assign such duties to the proper depart- 
ment. 

See note, ante, § 407. 



§ 854 CITIES OF MORE THAN TWENTY-THREE THOUSAND. 612 



INVESTIGATION AND IMPEACHMENT. 

854. Investigating: departments. — 27. The common council shall 
have power to supervise and investigate all departments, officers and 
employes of the government of such city, and to examine into any 
charge preferred against the same and into the affairs of any corpora- 
tion, department or board in which the city may be interested, or with 
which it may have entered into a contract or may be about so to do. 
It shall have power of access to all records thereto pertaining, and 
power to compel the attendance of witnesses and the production of 
books, papers and other evidence at any meeting of the body, or any 
committee thereof, and for that purpose may issue subpenas and at- 
tachments in any case of inquiry, investigation or impeachment, and 
cause the same to be served and executed in any part of the county 
where such city is located. If any witness shall refuse to testify as 
to any fact within his knowledge or to produce any books or papers 
within his possession or under his control, required to be used as evi- 
dence in any case, the clerk of the body by whose authority such wit- 
ness was subpenaed, if so directed by the body, or committee holding 
the investigation, shall forthwith report the facts relating to such re- 
fusal to the circuit or superior court in such county or judge thereof ; 
and all questions arising upon such, refusal, and also upon any new 
evidence not included in such first report, which new evidence may be 
offered either in behalf or against such witness, shall be heard by 
such court or judge. If the court or judge determine that the testi- 
mony or evidence required by such witness is competent and relevant, 
and material, and ought to be given or produced by the witness, the 
court or judge shall make an order requiring the witness to testify or 
to produce books and papers or both. In case of refusal to comply 
with such order, the court or judge shall have power to commit the 
witness or otherwise punish him for contempt, as provided for in the 
law governing contempt of court in this state. No w^itness shall be 
excused from testifying in any criminal proceeding or in any investi- 
gation or inquiry before the council or any committee thereof, or any 
officer of the city having the right to conduct the investigation touch- 
ing his knowledge of any offense committed against the provisions of 
this act, or of any ordinance passed in pursuance thereof, or continued 
in force by this act. But such testimony shall not be used against 
him in any criminal prosecution whatever. 

855. Impeacliment — Removal. — 28. Whenever any written charges 
shall have been adopted by the council, or any committee thereof, 
against any officer, employe or department of the corporation, except 
members of the council, the same shall be heard by the council, un- 
der such regulation as may be prescribed by ordinance. It shall 
require a two-thirds vote to impeach or remove an officer or employe. 

See note, ante^ § 119, 



613 LEGISLATIVE COMMON COUNCIL. § 856 



FINANCIAL. 

856. Taxation. — 29. The common council shall have power to 
order and direct the levy of an annual tax, not exceeding the rate of 
one dollar and twenty-five [cents] ($1.25) upon every one hundred 
dollars ($100.00) of valuation for any one year, as shown by the tax 
duplicate for the current year, and to manage the finances of the city, 
subject, however, to the powers and duties herein prescribed in respect 
to the several executive departments created by this act. The assess- 
ment [of property and collection] of taxes shall be made as now pro- 
vided by law: Provided, That all real estate within the limits of such 
city, not exempt from taxation by the laws of this state, shall be 
assessed at its fair cash value, without discrimination in the valuation 
of lands used for agricultural purposes within the limits of such city. 

See post, § 955. 

See Taxation, R. S. 1894, ch. 108 (§§ 8408-8677) ; Burns' Supp. 1897, ch. 108 (§ 8411, 
et seq.); and Acts 1899, pp. 422, 430, 497, 516. 
See ante, § 212, etseq., and notes. 

857. Loans— Limit.^ — 30. The common council shall have power 
to borrow money to an amount not exceeding two per cent. (2 per 
cent. ) of the taxable property of such city, as the same may appear 
on the tax duplicate of such city, for the year in which such loan 
shall be effected: Provided, That the entire money borrowed shall 
not at any time exceed two per cent. (2 per cent. ) of the taxable prop- 
erty of such city, except for the issue and sale of refunding bonds as 
hereinbefore provided. Such loans may be made only for the pur- 
pose of procuring money to be used in the legitimate exercises of the 
corporate powers of such city, and for the payment of legitimate cor- 
porate debts. 

See constitutional limitation, ante, § 39 and notes, and §§ 143, 411 and notes. 

858. Bonds — Issue and sale. — 31. Such ordinance for loans may 
authorize the issue of bonds or other city obligation, negotiable or not, 
bearing interest at a rate not exceeding six (6) per cent., and running 
not to exceed thirty years. Such ordinance shall provide for the time 
and manner of advertising the sale of such bonds or other securities, 
and of the receipt of bids for the same, together with the mode and 
terms of sale. All duties with regard to the preparation, advertise- 
ment, negotiation and sale of such bonds or other securities shall be 
performed by the head of the department of finance; said ofticer, after 
causing such bonds to be properly executed, shall deliver the same to 
the city treasurer, taking his receipt therefor, and upon the conclusion 
of the contract for the sale of such bonds or other securities shall cer- 
tify to the treasurer the amount which the purchaser is to pay for the 
same, together with the uaine of the purchaser, and thereupon it shall 
be the duty of the treasurer to receive from the purchaser the amount 



§ 859 CITIES OF MORE THAN TWENTY-THREE THOUSAND, 614 

SO certified by the head of tlie department of finance, and to deliver 
tiie bonds or otlier securities to tlie purcliaser, taking his receipt tliere- 
for. The treasurer and the head of the department of finance shall 
thereupon each make a report of his proceedings to the mayor. 

859. Temporary loans.— 32. Temporary loans may be authorized 
by ordinance of the common council in anticipation of the reve- 
nue of the city for the current and following year, and payable 
within that period, but the aggregate amount of such temporary 
loan in any fiscal year shall not exceed the amount of the city tax levy 
for the same year. No temporary or other loan upon the revenue of 
any current or succeeding year shall be made until all temporary 
loans upon the revenue of any preceding year shall have been fully 
paid. 

860. Refunding bonds. — 33. The common council shall have 
power to authorize the issue and sale of refunding bonds in order to 
raise money to take up any outstanding bonds of such city, or to ex- 
change with the holders of such outstanding bonds. The same shall 
be governed by the provisions of the second preceding section, so far 
as the same are applicable. 

See ante, §§ 89, 143, 144, 157, 414 and notes. . 

861. Warrants— When not issued. — 34. No order or warrant shall 
be drawn against the funds of such city in the hands of the treasurer 
or other officer, unless an appropriation has been made by ordinance 
of money for such purpose which is not exhausted, or unless the same 
shall be for a salary fixed by statute or ordinance, or for the payment 
of some judgment which such city is compelled to pay. 

862. Interest-- — 35. All bonds or other city securities offered for 
sale, pursuant to the provisions of this act, may bear annual interest 
not exceeding six per cent. (6 per cent.), may run not longer than 
thirty years, and may contain an option allowing such city to redeem 
the same at earlier specified dates, in whole or in part, if so directed 
in the ordinance authorizing such issue. 

863. Continuation of appropriations and tax leyy.— 36. If the 
common council for any year shall fail to pass ordinances fixing the 
annual tax levy and appropriating money for the various executive 
departments by or before the first day of November in any year, then 
in that case the appropriations made for such department or depart- 
ments for the preceding year, shall be deemed to be continued and re- 
newed for the current year, and the tax levy of the preceding year 
continued. 

ANNEXATION. 

864. Boundaries and annexation. — 37. The common council shall 
have power by ordinance to declare and define the entire corporate 
boundaries of such city, and such ordinance, properly certified, shall 
be conclusive evidence in any court or proceeding of the boundaries of 
such city, except as provided in the next section. Such ordinance de- 



615 LEGISLATIVE COMMON COUNCIL. § 865 

fining the entire city boundary may include contiguous territory, 
whether platted or not, not previously annexed, and such annexation 
shall be binding,, unless such newly annexed territory shall be within 
the limits of another town or city, in which case there may be an 
appeal, as hereinafter provided. Said common council may also, by 
separate ordinance, not purporting to define the entire boundaries of 
such city, annex contiguous territory, whether platted or not, and 
w^hether in the limits of an incorporated town or not, to such city; 
and a certified copy of such ordinance shall be conclusive evidence in 
any proceeding that the territory therein described was properly an- 
nexed, and constitutes a part of such city, except as provided in the 
next section. Immediately after the passage of every such ordinance 
as provided for in this section, the same shall be published for at least 
two (2) consecutive weeks in a daily newspaper of general circulation 
published in such city. 
See ante, §§ 253-255 and notes, 418 and notes, andpos^, §§ 1017-1048 and notes. 

865. Remonstrance — Appeal — Proceedings, — 38. Whenever such 
territory is annexed to such city, as provided in the foregoing section, 
whether by general ordinance defining the city boundaries, or by spe- 
cial ordinance for the purpose of annexing territory, and such terri- 
tory so sought to be annexed is unplatted ground or lies within the 
corporate limits of any other town or city, an appeal may be taken 
from such annexation by one or more resident freeholders in the ter- 
ritory sought to be annexed, filing their remonstrance in writing 
against such annexation, together with a copy of such ordinance in 
the circuit or superior courts of the county where such territory is sit- 
uated, within ten (10) days after the last publication provided for in 
the preceding section, such written remonstrance or complaint shall 
state the reason why such annexation ought not in justice to take 
place. Notice of such proceedings by way of summons shall be 
served upon the proper ofiicer of the city seeking to make annexation, 
and such city shall become defendant in such cause, and shall be re- 
quired to appear and answer as in other cases. The court shall there- 
upon proceed to hear and determine such appeal without the interven- 
tion of a jury, and shall give judgment upon the question of such 
annexation according to the evidence which either party may intro- 
duce relevant to the issue. If the court should be satisfied upon hear- 
ing that less than seventy-five (75) per cent, of the resident freehold- 
ers of the territory sought to be annexed have remonstrated and that 
the adding of such territory to the city will be for its interest and will 
cause no manifest injury to the persons owning real estate in the terri- 
tory sought to be annexed, he shall so find, and said annexation shall 
take place. If the court shall be satisfied that seventy-five (75) per 
cent, or more of the resident freeholders in the territory sought to be 
annexed have remonstrated, then such annexation shall not take place, 
unless the court shall find from the evidence that the prosperity of 
such city and territory will be materially retarded, and the safety of 



§ 866 CITIES OF MORE THAN TWENTY-THREE THOUSAND. 616 

the inhabitants and property thereof endangered without such annex- 
ation. In case the court shall so find the annexation shall take place. 
Notwithstanding the remonstrances such decision shall be final, and 
no appeal shall lie therefrom; nor shall the laws touching change of 
venue from the county apply, but changes of venue from the judge 
may be had as in other cases. Costs shall follow judgment. Pending 
such appeal, and during the time within which such appeal may be 
taken, such territory sought to be annexed shall not be deemed a part 
of the annexing city. Upon the determination of such appeal the 
judgment shall particularly describe the ordinance upon which the 
appeal is based, and it shall be the duty of the county clerk to forth- 
with deliver a certified copy of such judgment to the clerk of such 
city, who shall record the same in the ordinance record and make a 
cross reference to the page thereof upon the margin where such origi- 
nal ordinance was recorded. In case the decision is adverse to such 
annexation no further annexation proceedings for such territory shall 
be lawful for two (2) years after the rendition of such judgment. 

See note, ante, § 419. 

866. Parts of cities aud towns not to be annexed. — 39. No such 
annexation shall be made, under the foregoing sections, of any part 
of the territory of any other incorporated town or city, but only of the 
whole corporate territory thereof. In case of such annexation the two 
corporations shall be deemed to be consolidated, and the consolidated 
corporation shall be bound for all the debts and liabilities, and shall 
be the owner of all corporate property, franchises and rights of every 
nature, including all taxes of both of such municipal corporations. 

867. Disannexation of territory. — 40. The common council shall 
have power by ordinance to disannex and throw out any territory 
forming a part of the corporate limits of such city, upon a petition of 
a majority of the freeholders resident therein; but such disannexation 
shall not relieve such territory from being taxed for the purpose of 
paying any city indebtedness existing before such disannexation, nor 
the interest thereon, nor any new securities issued to refund such in- 
debtedness, nor the interest thereon. 

ARTICLE 3.— EXECUTIVE AND JUDICIAL OFFICERS AND DEPARTMENTS. 

SEC. SEC. 

868. Executive and administrative author- 875. Appointment of judge — Removal — 

ity. Term — Bond — Sessions — Jurisdic- 

869. Mayor — Election — Qualifications — tion. 

Term — City clerk. 876. Original and concurrent jurisdiction — 

870. Vacancy in office of mayor. Punishment — Limit. 

871. Acting mayor. 877. Rules — Oaths — Appeals. 

872. Duties and powers of mayor. 878. Judge pro tern. — Docket fee. 

873. City court — Officers thereof — Effect 879. Failure to pay fine — Imprisonment. 

of judgments — Proceedings. 880. Vacancy in office of police judge. 

874. Court seal— Change of venue. 881. Officers not to receive fees. 



617 



EXECUTIVE AND JUDICIAL OFFICERS AND DEPARTMENTS. 



SEC. 

882. 
883. 
884. 
885. 



889. 
890. 

891. 
892. 



893. 

894. 
895. 



897. 



899. 



900. 
901. 
902. 
903, 

904. 
905. 
906. 
907. 

908. 
909. 
910. 
911. 
912. 
913. 
914. 
915. 



Salary of judge. 

Clerk of court— Duties. 

Bailiff of court— Bond — Duties. 

Suits — Averments as to incorporation 
and publication of ordinances not 
required. 

Eailroad and other corporations — 
Summons — Service — Judgment — 
Arrest. 

Actions — Process — Arrest — Com- 
plaint — Proceedings . 

Commitment for failure to pay judg- 
ment — Limit — Manual labor. 

Salary of mayor. 

City clerk — Duties — Deputy — Sala- 
ries. 

Departments established. 

Qualifications of heads of depart- 
ments — Reports of moneys re- 
ceived. 

Estimates of heads of departments 
— Tax levy — Appropriations. 

Contracts — When bind city. 

Issuing illegal warrants — Unauthor- 
ized contracts — Penalty. 

Comptroller— Appointment — Salary 
— Deputy. 

Duties of comptroller. 

City attorney — Appointment — Bond 
— Salary — Duties . 

Board of public works — Appoint- 
ment — Salary — Bonds — Record of 
proceedings. 

Engineer — Appointment— Salary. 

Duties and powers of board. 

Contracts for work. 

Letting contracts — Drawings and 
specifications— Notice— Bids, etc. 

Expenses of board— Payment. 

Appropriation of property. 

Roll of owners of property. 

Awards and assessments— Damages — 
Benefits — Notice. 

Insane persons and infants. 

Remonstrance — Appeal. 

Appeal — How taken — Judgment. 

Assessment of benefits — Lien. 

Benefits— When due — Collection. 

Damages— Payment by city. 

Damages — Payment. 

Street— Alley— Highway — Water- 
course—Change of. 



SEC. 

916. 



917. 

918. 
919. 
920. 
921. 

922. 
923. 
924. 

925. 

926. 
927. 
928. 
929. 
930. 
931. 

932. 
933. 
934. 

935. 

936. 
937. 

938. 

939. 
940. 
941. 

942. 
943. 
944. 
945. 
946. 
947. 

948. 
949. 
950. 

951. 
952. 

953. 
954. 



Powers of common council — Open- 
ing of streets, alleys, etc.— Re- 
moval of obstructions. 

Order for street improvement. 

Payment by installments. 

Assessment roll. 

Final estimate — Notice — Hearing. 

Agreement of persons paying by in- 
stallments. 

Duty of treasurer — Account of fund. 

Street improvement bonds. 

Failure to pay installments — Effect. 

Levees, viaducts, tunnel or aqueduct, 
water-course, drainage. 

Assessments — Liens — Collection. 

Sewers and drains. 

Local sewers. 

General sewers— Cost — How paid. 

Assessments — Collection . 

Contracts for sprinkling and sweep- 
ing. 

Cost — Assessment. 

Assessments — When payable. 

Board of public safety — Appoint- 
ment — Bond— Salary. 

Rules — Quorum — Chairman — Rec- 
ord. 

Powers and duties of board. 

Firemen and police — Terms — Re- 
moval. 

Punishment of firemen and police- 
men. 

Powers of policemen. 

Duty as to prisoners. 

Detail of policemen — Additional po- 
licemen. 

Oaths — Who may administer. 

Duties of policemen. 

Gaming houses. 

Arrest — Duty on making. 

Bonds of appointees. 

Board of public works — Performance 
of duties of board of public safety. 
Pensions and pension fund. 
City treasurer — Office abolished. 

Treasurer of county to be city treas- 
urer — Duties. 

Duties of treasurer. 
Settlement by treasurer — Collection 
of taxes. 

Payment of money into treasury. 

City treasurer to deliver precepts. 



§ 868 



CITIES OF MORE THAN TWENTY-THREE THOUSAND. 



618 



SEC. SEC. 

955. Taxation — Assessments. 967. 

956. Duty of county auditor. 968. 

957. Levy of taxes— Limit. 969. 

958. Auditor to put taxes on duplicate. 970. 

959. Notice by county treasurer. 971. 

960. Duty of county treasurer — Delin- 972. 

quency. 

961. Failure to pay installment — Effect. 973. 

962. Settlement by county treasurer. 974. 

963. Payment of school taxes. 

964. Delinquent list. 975. 

965. Settlement for delinquent taxes, 976. 

966. Payment of school delinquency. 977. 



Delinquent list— Duty of auditor. 

Sale of land and lots. 

Payment of bids — Enforcement. 

Provisions of law applicable. 

Salary of county auditor. 

Board of health and charities — Ap- 
pointment — Salary — Duties. 

Preparation of ordinances. 

Powers of officers and boards— Mode 
of exercise— Laws and ordinances. 

Laws repealed. 

Words and phrases construed. 

School laws not repealed. 



EXECUTIVE. 



868. Executive and administratiye authority. — 41. The executive 
and administrative authority of such city shall be vested in a mayor, 
city clerk, the departments hereinafter created or referred to, and such 
other officers as may hereinafter be appointed by virtue of this act. 

For powers and duties of executive and administrative .officers under the general law 

of 1867, see ante, § 59, et seq., and notes. 

869. Mayor — Election — Qualifications — Term— City clerk. — 42. 

There shall be chosen at each general election, hereinbefore provided 
for, by the voters of said city, a mayor, a city clerk, each of whose 
terms of office shall commence at twelve o'clock noon on the first 
Monday in September, 1902, and shall continue two (2) years, or un- 
til his respective successor is elected and qualified, except as herein 
otherwise provided: Provided, That the mayor and city clerk now in 
office shall hold their respective offices until twelve o'clock noon on 
the first Monday in September, 1902. No person shall be qualified 
for the office of mayor who has not been a citizen and resident of such 
city for three years previous to his election, and who is not at least 
twenty-five (25) years of age. 

870. Yacancy in office of mayor, — 43. In case of a vacancy occur- 
ing in the office of mayor, from death, resignation or otherwise, 
more than six (6) months before a general election shall occur, it 
shall be the duty of the acting mayor to take official notice thereof, 
and within ten (10) days thereafter issue his proclamation calling for 
a special election by the voters of such city at a date therein named, 
not later than forty (40) days, nor earlier than twenty-five (25) days 
after the issuance of such proclamation to fill such vacancy or vacan- 
cies. Such special election shall be governed by the laws and regu- 
lations governing general elections. 

871. Acting mayor. — 44. In case of vacancy in the office of mayor, 
from death, resignation or otherwise, or in case of disability on the 
part of the mayor to perform the duties of his office, the city comp- 



619 EXECUTIVE AND JUDICIAL OFFICERS AND DEPARTMPJNTS. § 872 

troller shall perform the duties of acting mayor, and be entitled to his 
salary for the time being: Provided, That during the time of perform- 
ing such duties of acting mayor he shall not perform any duties as 
comptroller. 

872. Duties and powers of mayor. — 45. It shall be the duty of the 
mayor to cause the ordinances of the city and the laws of the state to be 
executed and enforced ; to communicate to the council at least once a 
year a statement of the finances and general condition of city affairs, 
and also such information in relation to the same as he may be called 
upon to furnish from time to time ; to make such recommendations 
in Avriting, by message to the council, as he may deem expedient; to 
call special meetings of the council, when he shall deem the same ex- 
pedient ; to perform such duties of an executive or administrative 
character as may be prescribed by law, and he shall be responsible 
for the good order and efficient government of the city; to fill, by ap- 
pointment, vacancies for unexpired terms in all elective offices, except 
that of mayor ; to appoint the heads of departments, as hereinafter 
created, who shall hold office until their successors are appointed and 
qualified : Provided, That the mayor may at any time suspend or re- 
move from office any or all of such persons, whether appointed by 
liim or his predecessors, by notifying them to that effect and sending 
a message to the council stating in writing his reasons for such, 
removal ; to sign all bonds, deeds and written contracts of the corpo- 
ration, and all licenses issued pursuant to law, by any department, and 
to revoke or suspend any such license ; to approve or disapprove in 
writing, within ten (10) days after receiving the same, every ordi- 
nance or resolution of the council, and he shall transmit to the body 
in which the same originated within such time a message announcing 
such approval or veto ; in case of a veto he shall state in writing his 
reasons therefor ; and such resolution or ordinance shall not become 
operative unless the same is passed over such veto, by a majority vote 
of all the members of the common council elect : Provided, That in 
ordinances appropriating money or levying a tax or taxes, the mayor 
may approve or disapprove of the separate items of such appropriation 
or levy. In case of disapproval of any item or items and approval of 
the remainder of the ordinance, so much of the same as is approved 
shall be law and operative and those items which are disapproved 
shall not become law and operative, unless passed over his veto by a 
majority vote as above provided. To call together the heads of depart- 
ments, except of assessment and collection, for consultation and ad- 
vice upon the affairs of the city at least once a month, and to call on 
the heads of all departments for reports from the same, which it shall 
be their duty to prepare and submit in writing. Records shall be 
kept of such meetings as above provided for, and rules and regulations 
shall be adopted thereat, for the administration of the affairs of the 
city departments not inconsistent with any law or ordinance, which 
regulations shall prescribe a common and systematic method of ascer- 
taining the comparative fitness of applicants for office, position and 



§ 873 CITIES OF MORE THAN TWENTY-THREE THOUSAND. 620 

promotion, and of selecting, appointing and promoting those found to 
be best fitted. To appoint, as often as he thinks proper, three compe- 
tent persons to examine without notice the accounts of any depart- 
ment, officer or employe, and the money, securities and property of 
the city in their possession or charge, and report the result of such 
investigation. 

See note, ante, § 426. 

For powers and duties of mayor under the general law of 1867, see mite, § 80 and notes. 

For city court under said general law, see ante, §262, et seq., and notes. 

JUDICIAL. 

873. City court — Officers thereof — Effect of judgments — Proceed- 
ings. — 46. The judicial power of such city shall be vested in a city 
court. The officers thereof shall be one (1) judge, a clerk and a bail- 
iff. The style of such court shall be: "The city court of , 

Indiana," according to the name of such city. Said court shall be a 
court of record, and all its judgments, decrees, orders and proceed- 
ings, shall have the same force and effect as those of the criminal or 
circuit courts, except that no judgment shall be a lien on the real es- 
tate otherwise than is provided by taking transcript, and the same 
shall be enforced in the same manner as liens by transcripts from jus- 
tices of the peace in similar cases. 

874. Conrt seal — Change of venue. — 47. The city judge shall pro- 
vide, at the expense of the city, a seal for such court, which shall con- 
tain on the face the words: ''The city court of , Indiana," 

the blank to be filled with the name of the city. A description of 
such seals, together with the impress thereof, shall be spread on the 
records of such court. No change of venue shall be taken from such 
court, but any defendant may take a change of venue from the judge 
thereof, as is now provided by law relating to criminal and circuit 
courts. 

875. Appointment of judge — Removal — Term — Bond — Sessions- 
Jurisdiction. — 48. The police judge shall be appointed by the mayor 
of such city. He shall be an attorney at law of good standing and 
reputation. He may be removed by the mayor, and his removal shall 
take effect upon the appointment and qualification of his successor. 
Before entering upon the discharge of his duties, he shall execute a 
bond, payable to such city, in the penal sum of five thousand dollars 
($5,000.00), with good and sufficient freehold security, to be approved 
by the mayor and filed in the office of the city comptroller, conditioned 
for the faithful and honest discharge of the duties of his office. He 
shall hold daily sessions of the police court, Sundays excepted, at a 
place within such city, provided and designated by the common coun- 
cil. He shall have and exercise within such county in which such 
city is located, the powers and jurisdiction now or hereafter conferred 
upon justices of the peace in all felonies, crimes and misdemeanors, 
except as otherwise herein provided. He shall have and exercise 



621 EXECUTIVE AND JUDICIAL OFFICERS AND DEPARTMENTS. § 876 

within such city the powers and jurisdiction now conferred on mayors, 
except as otherwise herein provided. He shall have exclusive juris- 
diction of all violations of the ordinances of such city. He shall also 
have such further and additional jurisdiction as in the next section 
provided. 
For city court under general law of 1867, see ante, § 262, et seq., and notes. 

876. Original and concniTent jurisdiction — Punishment — Limit.— 

49. The police court of said city shall have original concurring juris- 
diction with the circuit courts of the state and in all cases of petit 
larceny and in all other cases of felonies and misdemeanors where the 
punishment fixed by law can not exceed a fine of one thousand dollars 
($1,000) and imprisonment in the state prison not more than three 
(3) years. On the trial of any person in said court for the violation 
of any law of this state, the judge or jury trying the case shall, upon 
conviction, have the power to assess a fine not exceeding one thousand 
dollars ($1,000), with imprisonment in the state prison not exceeding 
three (3) years, and disfranchisement for any determinate period. 
Or to assess a fine not exceeding one thousand dollars ($1,000), to 
which may be added imprisonment in the county jail, work- house, or 
other lawfully designated place of confinement, for a term not exceed- 
ing one (1) year, with disfranchisement as above provided. Appeals 
may be taken from the judgment of this court to the circuit court of 
the county within ten (10) days from the rendition thereof, upon 
filing a bond as required by law. 

877. Kules — Oaths — Appeals. — 50. Such judge shall have full 
power and authority to make and adopt rules and regulations for con- 
ducting the business of said court, not repugnant to the laws of this 
state, and shall have all power incident to the court of record in re- 
lation to the attendance of witnesses, the punishment of contempts, 
and enforcements of its orders, and to issue commissions for taking 
depositions in cases pending in said court. He shall have full au- 
thority to administer oaths and to give all necessary certificates for the 
authentication of the records and proceedings of said court in the 
matter of changes of venue, and in the trial of any person charged 
with the violation of any law of this state. Such court shall be gov- 
erned, as far as may be, by the laws, rules, practices and pleadings 
relating to criminal courts, except where herein otherwise provided, 
and in the trial of any person charged with the violation of any ordi- 
nance of such city, such court shall be governed, as far as may be, by 
the laws, rules, practice and pleadings now in force relating to mayors' 
courts, except where herein otherwise provided. Appeals shall be 
from the judgment of said court in criminal cases to the criminal cir- 
cuit court and in civil cases to the superior or circuit courts in the 
same manner that is now provided for the appeals from the mayor's 
court. 

878. Judge pro tem. — Docket fee, — 51 In case of the temporary 
absence or inability of the police judge to act, he shall appoint any 



§ 879 CITIES OF MORE THAN TWENTY-THREE THOUSAND. 622 

reputable practicing attorney to preside in his absence, and such judge 
][>ro tern, shall have and possess all the powers and rights, and perform 
and exercise all of the duties of judge of such court as fully and com- 
pletely as the police judge appointing him. It shall be the duty of 
the regular judge of such court and such special judge to tax for the 
use and benefit of such city, a docket fee of five dollars ($5.00) in 
each case where a defendant is adjudged guilty of a violation of any 
law of this state or ordinance of such city, which docket fee shall be 
collectible in the same manner as other costs are collected; and no 
other fees whatever shall be taxed against a defendant except as herein 
provided for: Provided, however, That nothing herein shall prevent 
the taxing and collection of the penalties and fees now provided by 
law in case of the collection of judgments on execution, levy and sale 
of personal property, but such penalties and fees when collected shall 
be for the use and benefit of such city. 

879. Failure to pay fine — Imprisonment. — 52, Any person having 
been adjudged guilty of a violation of an ordinance of said city and 
committed therefor may be discharged by such court or judge after 
said defendant has been imprisoned, in addition to the term of im- 
prisonment, if any, adjudged against him as a part of the sentence, 
and one (1) day for every dollar of such fine and cost, if it appear to 
such court or judge that such defendant is unable to pay or replevy 
such fine and costs, but an execution may issue against the property 
of the defendant, as in the case of other judgments. In no such case, 
however, shall the city be liable to any person for costs or fees. 

880. Yacancy in office of police judge. — 53. In the case of vacancy 
in the ofiice of police judge, the mayor shall appoint a successor, who 
shall hold such ofiice during the unexpired term of his predecessor. 

881. Officers not to receive fees. — 54. The police judge, clerk of 
the police court, or the bailiff thereof, shall not receive any fee, or 
other compensation whatever than their respective salaries. 

882. Salary of judge.— 55. The salary of the police judge shall be 
at the rate of one thousand dollars ($1,000) per annum, payable 
quarterly, as the salaries of other city officers are paid. 

883. Clerk of court — Duties. — 56. The police judge shall discharge 
the duties of clerk of the police court. He shall issue all process of 
said court, affix the seal ot the court thereto, and attest the same. He 
shall keep a true, correct and complete record and docket of all cases 
and persons arrested and brought before the said court, how tried and 
disposed of, and of the fees, fines, penalties, forfeitures, judgments, 
executions, decrees and orders had therein, in the same manner, as 
nearly as may be, as such records are kept by the clerks of the crim- 
inal courts. He shall collect, prosecute and receive payment of all 
such fees, fines, penalties and forfeitures, and all judgments and exe- 
cutions, and all mone3^s whatever accruing or to be paid in for the use 
of said city from the enforcement of any of the laws thereof. 

884. Bailiff of court— Bond— Duties.— 57. The bailiff of such po- 
lice court shall have the powers of a constable, and shall be a police 



623 EXECUTIVE AND JUDICIAL OFFICERS AND DEPARTMENTS. § 885 

officer of such city, designated and assigned to such court by the 
superintendent of police of such city. He shall give bond pa^^able to 
such city, in the penal sum of one thousand dollars ($1,000), with 
sufficient freehold surety, to be approved by the mayor, conditioned 
upon the faithful and honest discharge of his duties, which bond shall 
be filed in the office of the comptroller. It shall be his duty to be 
present at the sessions of such court, maintain order therein, and per- 
form all other ordinary court duties, subject to the order of the court. 
He shall have and exercise the powers and duties of a constable, as 
now prescribed bylaw, except as herein otherwise provided. He shall 
take charge of all executions issued by the police court, and shall see 
to the collection of the same. He shall keep, in books to be furnished 
him by the comptroller, a full and accurate account and docket of all 
executions which may come to his hands, showing the names of the 
defendants, date and number of the execution, amount of fines, fees 
or penalties imposed, and the disposition of such execution. He shall 
make out and deliver a written report to the clerk of the police court, 
every Tuesday of each week, of all moneys collected by him during 
the week, giving the names of the defendants, number of executions, 
amount of fines, fees or penalties collected, and forthwith pay such 
moneys to said clerk, taking his receipt therefor. 

885. Suits— Averments as to incorporation and publication of ordi- 
nances not required. — 58. Whenever any suit shall be instituted by 
such city it shall not be necessary to aver its corporate organization, 
or the publication of its by-laws or ordinances, unless the same is 
contradicted by affidavit. 

See notes, ante, § 82-84. 

886. Eailroad and other corporations — Summons — Service — 
Judgment — Arrest. — 59. In all prosecutions against any railroad or 
other incorporated company for the violation of any ordinance of the 
common council of any city, a summons may issue against the com- 
pany and may be served on the president, superintendent, secretary, 
treasurer, station agent or general agent, and upon the trial of the 
cause, judgment ma}^ be rendered against the railroad company for 
such penalty as may be adjudged, or the conductors or other agents of 
the company guilty of the violation, may be arrested by warrant, and 
may be proceeded against personally as in other cases. 

887. Actions — Process — Arrest — Complaint — Proceedings. — 60 . 
All actions brought to recover any penalty or forfeiture incurred under 
this act or ordinance made in pursuance thereof, shall be brought in 
the corporate name of such city, the process in every such action shall 
be a warrant and the person named in such warrant shall be arrested 
and retained in custody or under reasonable recognizance until the 
next sitting of the city court, and it shall not be necessary to file with 
the affidavit or complaint a copy of the ordinance, or section thereof 
charged to have been violated, but it shall be sufficient to recite in the 
affidavit or complaint the number of the section charged to have been 



§ 888 CITIES OF MORE THAN TWENTY-THREE THOUSAND. 624 

violated with the date of its adoption; nor shall it be necessary to copy 
any part of the affidavit or complaint or other pleadings in the record 
of the cause: Provided, That the city judge shall note upon his dock- 
et the parties to the action, the title to the cause, the filing of the com- 
plaint or affidavit, the issuing and return of process and the judgment 
and proceedings had in the cause, and the satisfaction of judgment 
when paid. 

See ante, §§ 82-84 and notes. 

888. Commitment for failure to pay judgment— Limit — Manual 
labor.- — 61. If the penalty or forfeiture in which judgment is ob- 
tained is not paid or replevied, the defendant may be committed for 
any period not exceeding thirty (30) days, to the work-house of such 
city, or if such city has no work-house, then to the county prison of 
the county in which such city is situated, and in the latter case it 
shall be the duty of the person having charge of such prison to re- 
ceive such defendant, and obey the judgment of the city court in 
reference to him or her, and in default of payment or replevy of such 
judgment and costs, the defendant, unless a female, may be adjudged 
and required to pay the same by manual labor in said work-house or 
county prison, or on the street or other public works of such city, 
under the control of the department of public works of such city, for 
which labor such defendant shall be allowed on such judgment and 
costs seventy-five cents ($0.75) per day. It shall be the duty of said 
department of public works, or such officer as the department of pub- 
lic works may direct, to work such defendant not less than six (6) nor 
more than ten (10) hours per day, according to the season, and each 
evening return him to the custody of the keeper of such prison or 
work-house. Upon the full payment, as aforesaid, of the judgment 
and costs, such defendant shall be fully discharged. And such de- 
partment of public works is hereby authorized and required to per- 
form all the duties herein prescribed and to use all proper means 
thereto; and the common council is hereby vested with full authority 
to pass by-laws and ordinances for the purpose of compelling the en- 
forcement of such manual labor by such defendant, by the use of suf- 
ficient force and means as they may deem right and proper. If any 
prisoner is required to work upon the streets or other public works of 
the city as a part of his punishment, then such city shall pay to the 
county the fees now allowed to the sheriff for boarding prisoners while 
such prisoner is confined in the county prison or jail, and such de- 
fendant may, at any time replevy and pay such judgment and costs; 
and in case he has performed labor under such judgment, he shall be 
entitled to a credit for the same amount of labor performed, and the 
balance may be paid or replevied as aforesaid. 

889. Salary of mayor. — 62. The mayor of such city shall be paid 
an annual salary of two thousand dollars ($2,000), vfhich maybe 
increased by ordinance to any amount not exceeding twenty-five hun- 



625 EXECUTIVE AND JUDICIAL OFFICERS AND DEPARTMENTS. § 890 

dred dollars ($2,500), and tie shall receive no other compensation 
whatever. 

890. Citj clerk — Duties — Deputy — Salaries. — 63. The clerk of such 
city shall be the clerk of the common council, and may appoint one 
(1) or more deputies at his own expense to assist him; he shall keep 
the records of the proceedings of said body, said city clerk shall have 
charge of all the papers relating to the business of said common coun- 
cil, shall prepare and keep an ordinance book, as elsewhere provided 
in this act, shall have charge of all documents and books, the keeping 
of which may be entrusted to him by statute or ordinance, shall keep 
the city seal, and shall perform all other duties prescribed by law, or 
incident to his office. He shall receive a salary at the rate of eighteen 
hundred dollars ($1,800) per year, which may be increased by or- 
dinance to a rate not exceeding two thousand dollars ($2,000) for 
all such services, and shall not receive any other compensation, fee or 
perquisite, except for furnishing certified copies of the records in his 
possession, which shall be received as evidence in any proceeding, and 
for which the said clerk shall receive like fees as paid to the county 
clerks for similar services; said clerk shall deliver over to his suc- 
cessor, as soon as the same shall have qualified for office, all docu- 
ments, books and belongings of his office. The city clerk may be 
authorized by the common council to employ a deputy at a salary, to 
be paid by the city, not to exceed eight hundred dollars ($800) per 
year: Provided, That it is shown to the satisfaction of the council 
that such deputy is necessary. The city clerk of such city shall be 
ex-officio city comptroller, and possess all the powers and perform all 
the duties pertaining to such office, unless and until the common 
council shall, by ordinance passed by three-fourths of all the members 
of the council elect, provide for the selection of some other person as 
city comptroller, as herein provided. And so long as the city clerk 
shall perform the duties of comptroller, he shall receive a salary in 
full for all services performed by him as such clerk and comptroller, 
of twenty-three hundred dollars ($2,300) per year, which may be 
increased by the common council, by ordinance, to twenty-five hun- 
dred dollars ($2,500) per year. 

For duties of city clerk under the general law of 1867, see mite, § 86 and notes. 

DEPARTMENTS. 

891. Departments established. — 64. The following executive de- 
partments are hereby established in such city: 

a. Department of finance. 

h. Department of law. 

c. Department of public works. 

d. Department of public safety. 

e. Department of assessment and collection. 
/. Department of public health and charities. 

CiT. AND To.— 40 



§ 892 CITIES OF MORE THAN TWENTY-THREE THOUSAND. 626 

No otlier executive or administrative departments shall be estab- 
lished in such city. Subordinate ofEcers and employes not herein 
provided for shall be appointed by the heads of their respective depart- 
ments; each department shall have power to prescribe rules and regu- 
lations not inconsistent with any statute or ordinance, or regulation 
established pursuant to this act for its own government, regulating 
the conduct of its officers, clerks and employes, the distribution and 
performance of its business, preservation of books, records, papers 
and property under its control. Each department shall promptly 
furnish to the mayor or common council any information which may 
be called for in relation to its affairs. The heads of said departments, 
except the department of assessment and collection, shall be appointed 
by the mayor. The departments of public works, public safety and 
public health and charities shall [keep] a continuous record or min- 
ute of all official business in said several departments. All officers 
shall give bond as required by ordinance except when otherwise pro- 
vided herein. 

See note, ante, § 429. 

892. Qualifications of heads of departments — Reports of moneys 
received. — 65. No person shall be appointed as the head of any depart- 
ment or as a member of any board herein provided for, unless he 
shall have been a resident and elector of such city for three years 
immediately prior thereto. No person who is paid a salary for his 
services from the city treasury shall receive to or for his own use, 
directly or indirectly, any fees, perquisites of office, commissions, per- 
centages, or money paid to him in his official capacity, unless specially 
authorized in this act, but all fees, perquisites, commissions, percent- 
ages and moneys so paid and received by or for any such officer or 
person shall be the property of the city, and shall be paid by him 
into the city treasury; and all moneys received for licenses or permits 
shall be paid into the treasury weekly without deduction by the officer 
or department receiving them, and every such officer or person who 
shall receive any fees, perquisites, percentages, or other moneys which 
belong to the city, and should be so paid into the treasury, shall, be- 
fore he shall be entitled to receive or be paid his salary, make, under 
oath, a detailed statement and return to the head of the department of 
finance in such form as he may prescribe, showing the aggregate 
amount of all moneys received by him since the last preceding state- 
ment and return, and shall produce a receipt showing the payment of 
such sum to the treasurer. The comptroller may require any such 
officer or person to make such statement and return to him, if it be 
not made as herein provided, and examine such officer or person un- 
der oath touching the matter herein provided for. 

898. Estimates of heads of departments — Tax levy — Appropria- 
tions, — 66. It shall be the duty of each executive department, before 
the commencement of each fiscal year, to submit to the joint meeting 
of the heads of departments and of the various boards in this act pro- 



627 EXECUTIVE AND JUDICIAL OFFICERS AND DEPARTMENTS. §894 

vided for, an estimate of the amount of money required for their re- 
spective departments for the ensuing fiscal year, stating with as great 
particularity as possible each item thereof. The comptroller shall at 
the same time submit a statement or estimate of city expenditures for 
otiier purposes for the ensuing year, over and above the moneys pro- 
posed to be used by the various executive departments, giving with 
as great particularity as possible each item thereof. After such meet- 
ing and reports and consultation, the cit}^ comptroller shall thereupon 
proceed to revise such estimates fpr the ensuing year, and the comp- 
troller shall then prepare a report to the mayor of the various estima- 
ted amounts required in said comptroller's opinion for each executive 
department, and for other city expense, together with an estimate of 
the necessary per cent, of taxes to be levied. The mayor shall at the 
next meeting of the common council present such report Y\ath such 
recommendations as he may see fit. It shall be the duty of the com- 
mittee of finance of said common council thereupon to prepare an or- 
dinance fixing the rate of taxation for the ensuing year, and also an 
ordinance making appropriations by items for the use of the various 
executive departments and other city purposes for the ensuing year. 
Said ordinance may reduce any estimated item for any executive de- 
partment, from the figures submitted in the report of the city comp- 
troller, but shall not increase the same unless recommended by the 
mayor. Such appropriation ordinance shall thereafter be promptly 
acted upon by the common council. If at any time after the passage 
of such ordinance an emergency shall arise for further appropriations 
for the use of any department as certified by such department as here- 
inbefore provided, or other purposes during the year, such additional 
appropriation may be made on the recommendation of the comptroller 
by a tv/o-thirds vote of the council. 

894. Contracts— When bind city.—GT. No executive department 
officer, or employe thereof, shall have power to bind such city by any 
contract, agreement, or in any other way, to any extent beyond the 
amount of money at the time already appropriated by ordinance for 
the purpose of such department, and ail contracts and agreements, 
express or implied, and all obligations of any and every sort, beyond 
such existing appropriations, are declared to be absolutely void. 

See note, ante, § 432. 

895. Issuing illegal warrants—Unanthorised contracts — Penalty.-— 
68. Any city official who shall issue any bond, certificate or warrant 
for the payment of money which shall purport to be an obligation of 
such city, and be beyond the unexpended balance of any appropria- 
tion made for such purpose, or w^io shall attempt to bind such city 
by any contract, agreement, or in q.y\j other way, to any extent be- 
yond the amount of money at the time already appropriated by ordi- 
nance for such purpose, and remaining at the time unexpended, shall 
be liable on his official bond to any person injured thereby, and shall 
be fined in any sum not more than one thousand dollars ($1,000) and 



§ 896 CITIES OF MORE THAN TWENTY-THREE THOUSAND. 628 

imprisoned in the county jail not more than six (6) months, either or 
both. 

DEPARTMENT OF FINANCE. 

896. Comptroller — Appointment— Salary — Deputy.— 69. The city 
comptroller shall be at the head of the department of finance, and 
shall have an appropriate seal; he shall be appointed by the mayor; 
his salary shall be twelve hundred dollars ($1,200), which may be in- 
creased by ordinance to a sum not exceeding eighteen hundred dollars 
($1,800) per year. The common council may provide by ordinance 
for the appointment by the comptroller of a deputy for whose acts he 
shall be responsible, having an annual salary of eight hundred dollars 
($800), ¥7hich may be increased by ordinance to a sum not exceeding 
one thousand dollars ($1,000). The comptroller and his deputy are 
hereby authorized and empowered to administer oaths in all matters 
relating to his office. 

897. Duties of comptroller.— 70. It shall be the duty of the comp- 
troller: To prescribe the form of reports and accounts to be rendered 
to his department and to have the inspection and revision of the ac- 
counts of all other departments and trusts. To audit the accounts of the 
several departments and trusts, and all other accounts in which the city 
is concerned, and submit annually to the council at the end of each fiscal 
year a report of the accounts of the city, under his oath, exhibiting 
the revenues, receipts and expenditures, the sources from which the 
revenues and funds are derived, which report shall be published in 
pamphlet form. To keep separate accounts for each specific item or 
appropriation made by the council to each department, and require 
all warrants to state specifically against which of said items the war- 
rant is drawn. Each account shall be accompanied by a statement 
in detail in separate columns of the several appropriations, the amount 
dravv^n on each appropriation, the unpaid contracts charged against it, 
and the balance standing to the credit of the same. He shall not suf- 
fer any appropriation to be overdrawn or the appropriation for one 
item_ of expense to be drawn upon for any other purpose, or by any 
department other than that for which the appropriation was specific 
caily made, except on transfers authorized by ordinances. He shall 
sign and issue all orders for money on the city treasury, and no moneys 
shall be paid out by the treasurer except upon such order, and after 
the same is countersigned by the mayor. In case of stated salaries 
fixed by law or ordinance, said comptroller shall issue orders therefor, 
but in all cases he shall require a warrant to be presented to him from 
the head of the department under whose supervision the obligation 
has been incurred, or if not so incurred, then such warrant shall be 
drawn by the mayor. In no case shall the comptroller draw an order 
on the treasury unless there be at the time money in the treasury 
properly applicable to the payment thereof. The expenditures of the 
comptroller must be approved in writing by the mayor before any or- 



629 EXECUTIVE AND JUDICIAL OFFICERS AND DEPARTMENTS. § 897 

der is drawn therefor. To have charge of all books or papers pertain- 
ing to his department or entrusted to the same, and to turn the same 
over to his successor. If any warrant presented to the comptroller 
contain an item for which no appropriation has been made, or there 
shall not be a sufficient balance of the proper fund for the payment 
thereof, or which for any cause should not be approved, he shall not 
approve the same>, and shall notify the proper department of the facts. 
And if the comptroller shall approve any warrant contrary to the pro- 
visions hereof, he shall be individually liable for the amount of the 
same to the holder thereof, and to the extent of his bond; his sureties 
shall also be liable. Whenever a warrant shall be presented to him, he 
shall have power to require evidence that the amount claimed is justly 
due, and for that purpose may summon before him any officer, agent or 
employe of any department of the city, or any other person, and exam- 
ine him upon oath relative to such warrant or claim. Such persons so 
summoned shall be subject to the provisions of this act touching the 
examination of persons by the council, said comptroller having the 
same power as such body. To perform the duties elsewhere defined 
by this act in regard to the negotiation and sale of city securities, and 
to keep a register of all bonds of the city and of the transfer thereof, 
and an account of all outstanding securities. To manage and direct 
the finances and accounts of the city and make investments of city 
funds, subject to the ordinances of the common council. To issue all 
city licenses of every nature whatever upon the presentation and sur- 
render of the receipts of the treasurer showing the payment of the 
license fee, and to collect comptroller's fees as fixed by ordinance. 
Said comptroller shall once each week pay to the treasurer the amounts 
collected by his department for the preceding week, specifying the 
source from which they have been derived, and the comptroller shall 
relinquish in writing to such city all fees which have been or may be 
collected. To prescribe the forms and methods of keeping, and ren- 
dering all city accounts and pay-rolls to be used in the several depart- 
ments and offices, the manner in which all salaries shall be drawn and 
the mode by which all creditors, officers and employes shall be paid. 
All salaries shall be payable once in three (3) months. To furnish 
the treasurer statements of all appropriations made by the council be- 
fore any warrants shall be drawn on account of the same, and to 
notify the mayor in case of any neglect or failure on the part of an 
officer or officers authorized to collect moneys for or on account of the 
city, in the performance of such duty or in depositing their collections 
in the treasury, and thereupon the mayor shall suspend such officer or 
officers, and proceed against them by an action upon their official 
bond or otherwise, as he may deem best. To carefully examine the 
tax duplicates in the hands of the county auditor and county treasurer 
and see that they are properly made out so far as the same relate to 
the city taxes, and to see that the assessment of property is properly 
made out by the assessor so far as the same relates to city taxes, and 
to notify the county auditor of any omitted property that may come 



§ 898 CITIES OF MORE THAN TWENTY-THREE THOUSAND. 0SO 

to his knowledge. To examine the accounts of the treasurer and 
make an annual settlement with him, charging to such treasurer the 
amount of all taxes and other assessments entered upon said duplicate 
in favor of such city, together with all penalties, interest and other 
sums in addition to the amount of such tax, which it maybe the duty, 
according to law, of such treasurer to collect in behalf [of] the city, 
and to credit him with all disbursements made on account of lawful 
orders drawn on him by such comptroller. To draw orders on the 
treasury for miscellaneous city expenditures not made under the direc- 
tion of any executive department, nor specifically fixed by law as in 
the case of salaries: Provided, That no such order shall be drawn by 
such comptroller unless the money properly applicable thereto has 
been appropriated by ordinance and remains unexpended, and no 
liability shall accrue against such city, nor can any officer, agent or 
employe of such city bind the same directly or indirectly for any such 
miscellaneous expense without the written approval of the comptroller 
previously obtained and filed in the comptroller's office, nor in any 
case beyond the appropriation already made and remaining unex- 
pended available for such purposes. All obligations in contravention 
of the preceding provisions are declared to be void for all purposes. 

DEPARTMENT OF LAW. 

898. City attorney — Appointment — Bond — Salary — Duties. — 71. 

The head of the department of law shall be the attorney and counsel 
of such city. He shall be appointed by the mayor. He is to give a 
bond in the sum of five thousand dollars ($5,000) to be approved 
by the comptroller. He shall receive an annual salary of not less 
than fifteen hundred dollars ($1,500), which may be increased by 
ordinance to any amount not exceeding two thousand dollars ($2,0(M)), 
in full for all services, except as herein otherwise especially pro- 
vided, said salary to be fixed by the common council. He shall 
have the management, charge, and control of the law business of such 
city and for each branch of its government, and prosecute all violators 
of city ordinances; shall draw up ordinances, leases, deeds, contracts 
or other legal papers for such city and its various departments when 
requested to do so by the proper officers; shall be the custodian of the 
papers properly appertaining to his office, and shall turn the same 
over to his successor in office. He shall conduct all legal proceedings 
authorized by this act, and all appeals of every nature whatsoever in 
v/hich such city or the public shall have an interest; shall make all 
searches and abstracts of title required in opening, widening or chang- 
ing any street, alley or public place. All fees, perquisites or other 
emoluments received by him, or payable to him, excepting fees for 
the prosecution of violations of city ordinances, shall be collected by 
him for and in behalf of such city, careful account kept thereof, and 
the same paid into the city treasury, once a week, said payment to be 
made under oath as to the amount received. Such attorney shall use 



I 



631 EXECUTIVE AND JUDICIAL OFFICERS AND DEPARTMENTS. § 899 

all diligence to collect costs due such city, and all other fees or recov- 
eries falling within the purview of his official duties. He may em- 
ploy a deputy and also such other assistants as he may be authorized 
to do by ordinance and not other, and shall promptly commence all 
proceedings necessary or advisable for the prosecution or enforcement 
of the rights of such city or the public. He shall report to the mayor 
in writing all such matters as he may deem important, and to the de- 
partment of finance all judgments for which such city shall be liable. 
No judgment against such city shall be enforceable except out of 
moneys appropriated for that purpose, but the common council and 
mayor may be compelled by mandamus proceedings to levy, collect 
and appropriate the necessary sum for the payment of any judgment, 
in which case such legislative bodies may be sued collectively by their 
legal name, service of process being had on any member thereof, and 
all members shall be bound by such judgment. 

For powers and duties of city attorney, appointment, removal, etc., under the gen- 
eral law of 1867, see ante, §§59, 59a, 96 and notes. 

Authority of city attorney. — A city attorney who is charged by statute with the 
duty to prosecute and defend all suits for and against the city, in several controversies 
involving the same issues, may bind the city by an agreement that all the controversies 
shall abide the result of one test case. Bank of Commerce v. City of Louisville, 88 
Fed. Eep. 398. 

DEPARTMENT OF PUBLIC WORKS. 

899. Board of public works— Appointment — Salary — Bonds — Rec- 
ord of proceedings. — 72. The department of public works shall have 
for its head a board of three (3) members, to be appointed by the 
mayor, not more than two (2) of whom shall be of the same political 
party. The mayor shall have the power at any time to remove any 
member of said board and to fill, by appointment, any vacancy occur- 
ring in said office. The person appointed to fill a vacancy shall hold 
the office, subject to removal by the mayor, until his successor is ap- 
pointed by the mayor. Each member of said board shall receive a 
salary at the rate of twelve hundred dollars ($1,200) per year, which 
may be increased by ordinance to a rate not exceeding fifteen hundred 
dollars ($1,500) and give bonds with sureties in the sum of five thou- 
sand dollars ($5,000), to be approved by the comptroller. Said board 
shall choose a president and clerk from its own number. The presi- 
dent shall perform the duties usually pertaining to such office; and 
the clerk shall keep the records of the proceedings of such board as 
prescribed by this act. No member of said board shall have any au- 
thority to act on behalf of the same except pursuant to an order of the 
board, regularly made at a meeting of the same, at which meeting a 
majority of said board shall have been present. All actions of the 
board shall be recorded by the clerk thereof, together with a record of 
the vote of each member, where the vote is not unanimous. The board 
shall make rules governing the time and place for holding regular and 
called meetings, and for giving notice thereof. 
Rules.— See note, ante, § 438. 



§ 900 CITIES OF MORE THAN TWENTY-THREE THOUSAND. 632 

900. Engineer — Appointment — Salary. — 73. The mayor shall also 
appoint a city civil engineer, who shall be subject to the orders and 
directions of said board, and receive a salary of fifteen hundred dol- 
lars ($1,500) per year, which may be increased by ordinance not to 
exceed twenty hundred dollars ($2,000) per year. 

For powers and duties of city engineer under the general law of 1867, see ante, § 91 
and notes; Hirth v. City of Indianapolis, 18 App. 673. 

901. Duties and powers of board. — 74. The board of public works 
shall have the power to condemn, hire or purchase any real estate or 
personal property needed by such city for any public purpose, except 
when a different provision for purchase is made by this act; said 
board may cause buildings, structures or other things in the way of 
any street, sewer or other public improvement to be taken down, re- 
moved and appropriated upon the payment of damages as herein pro- 
vided; said board may enter upon, seize, appropriate and condemn 
the right of way, yards, depot, grounds or other lands of any railroad 
company, person or corporation, passing through such city, for street, 
sewer or alley purposes, whether such lands be occupied or not, upon 
the payment of damages as herein provided: Provided, That when a 
sum of more than five hundred dollars ($500) is required to be paid 
for the condemnation, hire or purchase of any real estate or personal 
property, the same shall not take place unless the condemnation, hire 
or purchase is specially authorized by ordinance. To have charge of 
all property, real and personal, belonging to such city, and to care 
for the same, except where the custody of such property is by this act 
placed under different control. To design, order, contract for and 
execute the improvement or repair of any property, real or personal, 
belonging to or used by such city, and the erection of all buildings 
for public purposes, together with all fire cisterns, pounds and other 
structures of any nature needed for any public purpose. To approve 
the platting of all streets and alleys in any addition to such city, or 
within the corporate limits thereof; to require the same to correspond 
in width, and to be coterminus with the adjoining streets and alleys. 
No plat shall be entitled to record in the recorder's office in the county 
in which such city is located, without such written approval endorsed 
thereon. To lay out, open, change, vacate, and to fix or change the grade 
of any street, alley or public place within such city, and to design, order, 
contract for and execute the improvement or repair of any street, alley or 
public place within such city. To repair, clean, light and sprinkle any 
street, alley or public place within such city which requires the same, in 
the opinion of such board, said work to be done either by contract or 
otherwise, and to cause lamp posts or other lighting apparatus to be 
erected in the streets, alleys or public places of such city. To lay out, 
design, order, contract for and execute the construction, alteration 
and maintenance of all public drains or sewers within such city, and 
all drains or sewers without such city and within four (4) miles 
thereof which may be necessary to carry off the drainage of such city. 



633 EXECUTIVE AND JUDICIAL OFFICERS AND DEPARTMENTS. § 901 

To purchase or erect, by contract or otherwise, and operate water 
works, gas-works, electric light works, street car and other lines for 
the conveyance of passengers and freight, natural gas lines, telegraph 
and telephone lines, for the purpose of supplying such city, and the 
suburbs thereof, or to purchase or hold a majority of such stock in 
corporations organized for either of the above purposes : Provided, 
That none of the powers conferred by this paragraph shall be exercised 
except pursuant to an ordinance specifically directing the same. To 
contract for the furnishing of gas, either natural or artificial, water, 
steam or electricity, light or power, to said city or the citizens thereof, 
by any company or individual, and such contract to fix the prices to 
be charged for the same in such city, subject to ordinances of such 
city in relation to consumption by private consumers : Provided, That 
such contracts shall in all cases be submitted by said board to the 
council of such city, and be approved by them by ordinance before 
the same shall take effect. To design, order, contract for and execute 
the erection of any culvert, bridge, way, viaduct, tunnel or aqueduct 
within such city, or to enter into a contract with any company or in- 
dividual for the joint erection and maintenance by such company or 
individual and such city of any such structure. To authorize and 
empower by contract, telegraph, telephone, electric light, gas, water, 
steam or street car or railroad companies to use any street, alley or 
public place in such city, and to erect necessary structures therein, 
and to prescribe the terms and conditions of such use ; to fix by con- 
tract the prices to be charged to patrons : Provided, That such contract 
shall in all cases be submitted by said board to the council of such 
city, and approved by them by ordinance before the same shall take 
effect ; to license the digging of any hole, or the removal of any 
material from the surface or underneath the surface of any street, 
alley or public place in such city ; to require bonds for dam- 
ages and for the proper replacement of the street, and to refuse 
such licenses when the public interest requires it; to direct the removal 
of any and all structures in the streets, alleys, or public places of such 
city, and to remove the same at the expense of the person maintaining 
the same, on their failure to make such removal; to design, order, 
contract for and execute the erection of any levee within the limits of 
such city or within four (4) miles thereof. To change any water- 
course, natural or artificial, within such city or within four (4) miles 
thereof. To remove all dead animals, garbage, filth, ashes, dirt, rub- 
bish or other offal from such city, either by contract or otherwise. 
To prepare a general, uniform plan for the drainage and sewerage of 
such city, and extend the same from time to time. To make and keep 
a map and record of all sewer, gas, water, electric wire conduits in 
such city, public and private, showing the size, depth, inclination, 
location and date of construction of the same, and to record therein 
every change which may be made in the same, together with all new 
connections and improvements. To discbarge all other duties of an 
executive character not falling within the sphere of some other execu- 



§ 902 CITIES OF MORE THAN TWENTY-THREE THOUSAND. 634 

tive department, or imposed upon this department by ordinance. To 
fill up or drain any section of ground within such city or within four 
(4) miles from its corporate limits whenever water has v^r may become 
so stagnant or noxious as to be injurious to the public health and 
comfort at the owner's expense, the same to be a lien and collectible 
by foreclosure. To construct urinals and fountains in public places. 
To fix, establish, change and keep a record of the grades of all streets, 
alleys and sidewalks. 

See post, §947. 

See note, ante, § 440. 

Power over streets, alleys and bridg'es— Duties— Lialbilities— Obstructions— Neg-li- 
g-ence— Actions— Damag-es. — See ante, § 218 and notes. 

Plats— Dedication of streets— Prescription, etc.— See ante, § 218 and notes. 

Opening' and vacation of streets— Eminent domain, etc.— See ante, § 218 and notes. 

Improvement of streets— Fixing- and chang-ing- grade.— See ante, §§ 91, 218, 219, 
and ^os*, §§ 1107-1135 and notes. 

Sewers, drains, etc.— See ante, §124, clauses 26 and 43 and notes, §§ 127 and 183 and 
notes, Sindpost, § 1090, dt seq., and notes. 

Corporations occupying' streets Rnder municipal franchises— Duties and liabili- 
ties, etc. — See ante, §218 and notes. 

Water-works — Contracts, ordinances, etc. — See ante, § 124, clauses 26 and 43 and 
notes,' and § 138, et seq. ; post, §§ 1061-1089. 

Public lig'hts— Gas and electricity.— See ante, § 124, clause 28 and notes, and post, 
§ 1136, et seq., and notes ; also post, §§ 1360-1371, et seq. 

Railroads— Occupation of streets, etc.— See ante, §218 and notes, and post, §1*316, 
et seq., and notes. 

Street car companies— Occupation of streets, etc.— See ante, § 218 and notes, and 
post, § 1332 and notes. 

Teleg'raph and telephone companies.— See aiite, §§ 1 and 4 and notes, § 218 and 
notes, and as to telephone companies, post, § 1380, etseq. and notes. 

Municipal property— Purchase— Sale— Control of, etc.— See ajite, § 124 and notes. 

902. Contracts for work. — 75. It shall be the duty of said board 
of public works whenever any work ordered or undertaken by it is 
payable out of the general treasury of such city, from funds belonging 
to such city, to cause said work to be done either by independent con- 
tract or by employes of said board, as said board may deem best. But 
whenever any work ordered or undertaken by said board is to be paid 
for, in whole or in part, by assessments made for that purpose upon 
the property benefited thereby, said board shall cause said work to be 
done by independent contract. 

903. Letting contracts — Drawings and specifications — Notice — Bids, 
etc. — 76. Whenever said board shall order any work to be done, which 
either by order of said board or according to law, is to be performed 
by independent contract, said board shall prepare and place on file in 
the ofiice of said department complete drawings and specifications of 
said work. Thereupon said board shall cause a notice to be published 
in one (1) daily or weekly newspaper of general circulation published 
in such city, once each week for two (2) weeks, informing the public 
and contractors of the general nature of the work and of the fact that 
the drawings and specifications are on file in such office, and calling 



I 



635 EXECUTIVE AND JUDICIAL OFFICERS AND DEPARTMENTS. § 904 

for sealed proposals for such work by a day not earlier than ten (10) 
days after the first of said publication. Said board shall require each 
bidder or firm of bidders to file with said board an affidavit that such 
bidder or bidders have not directly or indirectly entered into any com- 
bination, collusion, undertaking or agreement with any other bidder 
or bidders to maintain tlie price of any work or contract, or to prevent 
any other bidder or bidders from bidding, or to induce any bidder or 
bidders to refrain from bidding on any contract or work, and that 
such bid is made without regard or reference to any other bid or bids 
and with [out] any agreement, understanding or combination, either 
directly or indirectly, with any other person or persons with reference 
to such bidding in any way or manner whatever. And if after any con- 
tract has been let by said board it shall be made to appear to said board 
that the successful bidder has been guilty of any collusion, combina- 
tion, understanding or agreement, as defined in said affidavit, such 
bidder shall forfeit said contract and such work shall be relet by said 
board; the board may in its discretion fix a later day for receiving 
such sealed proposals, provided such date shall be mentioned in each 
of such notices. Said board shall, if a satisfactory bid be received, 
let such contract to the lowest and best bidder. Such board may by 
order impose further conditions upon bidders with regard to bond and 
surety guaranteeing the good faith and responsibility of such bidders 
or insuring the faithful completion of such work, according to con- 
tract, or for keeping the same in repair for any length of time, or for 
any other purpose. 

904, Expenses of board — Payment. — 77. All the expenses in- 
curred or authorized by such board of public works shall be payable 
out of the general funds of such city appropriated to the use of such 
board and available for the particular purpose, except where this act 
specifically directs that the same is to be paid for by assessments 
against property holders. 

CONDEMNATION. 

905. Appropriation of property. — 78. Whenever the board of 
public works shall desire to appropriate or condemn, for the use of 
such city, any property, real or personal, or to open, change, lay out 
or vacate any street, alley or public place within such city, including 
proposed street or alley crossings of railways in cases where the pro- 
posed street or alley is to cross a railway, they may enter upon, seize, 
appropriate and condemn, the right. of way, lands or other property, 
either real or personal, of any railroad company, person or corpora- 
tion, passing through such city for the above named purposes, 
whether such land be occupied and used or not, it shall adopta reso- 
lution to that effect, describing the property which may be injuriously 
or beneficially affected, and shall cause notice of such resolution to be 
published in some daily newspaper of general circulation in such city 
once each week for two (2) weeks. Such notice shall name a date, 



§ 906 CITIES OF MORE THAN TWENTY-THREE THOUSAND. 636 

after the last day of publication, at Vv^hich said board will receive or 
hear remonstrances from persons interested in or affected thereby. 
Said board shall consider such remonstrances, if any, and thereupon 
take final action, confirming, modifying or rescinding their original 
resolution. Such action shall be final and conclusive upon all persons 
except upon th^ dismissal and abandonment of the proceedings as 
hereinafter provided. 

For decisions on eminent domain, opening and vacation of streets, etc., under the 
general law of 1867, see ante, §§ 218, et seq., 224, et seq., and notes. 

For constitutional limitations, see ante, §§ 4 and 11 and notes. 

906. KoU of owners of property. — 79. Upon the final order being 

made, as provided in the preceding section, said board shall cause to 
be prepared a list or roll of all the owners or holders of property and 
of valuable interests therein, sought to be taken or to be injuriously af- 
fected, and in the case of opening, laying out, change or vacation of any 
street, alley or public place in such city, or within four (4) miles 
thereof, a list of the owners or holders of property or of valuable in- 
terests therein to be beneficially affected by such work. Such list 
shall not be confined to the owner of property along the line of pro- 
posed work, but shall extend to and include all property taken, bene- 
fited or injuriously affected. In addition to such list of names, the 
same shall show with reasonable certainty, a description of such 
property to be taken or affected, either beneficially or injuriously, be- 
longing to such persons. No greater certainty in names or descrip- 
tions shall be necessary to the validity of any assessment than is re- 
quired in the assessment of taxes. 

907, Awards and assessments — Damages — Benefits — ^Notice. — 80. 
Upon the completion of such list, said board shall proceed to award 
the damages sustained, and to assess the benefits accruing to each 
piece of property of said list. When such assessments or awards are 
completed, said board shall cause a written notice to be served upon 
the owners of each piece of property, showing the amount of such as- 
sessment or award, by leaving a copy of the same at his last usual 
place of residence in such city, or b}^ delivering a copy to such owner 
personally. If such person be a non-resident, or his residence shall 
be unknown, then he shall be notified by publication in some daily 
newspaper of general circulation in such city once each week for three 
successive weeks. Such notices shall also name a day, not earlier 
than ten (10) days after service of notice or after the last publication, 
as the case may be, on which said^board shall receive or hear remon- 
strances from persons with regard to the amount of their respective 
awards or assessments. Persons not included in such list of assess- 
ments or awards, and claiming to be entitled to the same, shall be 
deemed to have been notified of the pendency of the proceedings by 
the original notice of the resolution of the board. 

See note, ante, § 446. 



637 EXECUTIVE AND JUDICIAL OFFICERS AND DEPARTMENTS. § 908 

908. Insane persons and infants. — 81. In case any person haying 
any interest in land affected by such proceedings shall be of unsound 
mind or an infant, said board of public works shall certify the same 
to the city attorney, and said city attorney shall forthwith apply to 
the proper court and secure the appointment of a guardian for such 
infant or person of unsound mind; and thereupon said board shall 
give notice to such guardian, who shall thereupon appear and protect 
the interest of his ward: Provided, That if such infant or person of 
unsound mind already have a guardian, such notice maybe served on 
such guardian. The requisites of notice to such guardian shall be the 
same as in the case of other notices. If there be a defect in the pro- 
ceedings with respect to one or more interested persons, the same shall 
not affect such proceedings except so far as it may touch the interests 
or property of such person or persons, and shall not avail any other 
person concerned therein. In case of such defect, supplementary pro- 
ceedings of the same general character as those heretofore prescribed 
may be had in order to supply the same. 

909. Remonstrance — Appeal. — 82. Any person notified or deemed 
to be notified, under the preceding sections, may appear before such 
board on the day fixed for hearing such remonstrances with regard to 
awards and assessments, and remonstrate against the same. After 
such remonstrances shall have been received, said board shall there- 
upon either sustain or modify the awards or assessments in the cases 
of such remonstrances, but in no other case. Any person thus re- 
monstrating who is aggrieved by the decision of the board may, within 
twenty (20) days thereafter, take an appeal to the circuit or superior 
court in the county in w^hich said city is located. Such appeal shall 
only affect the assessment or award of the person appealing. 

910. Appeal — How taken- — Judgment, — 83. Such appeal may be 
taken by filing an original complaint in such court against such city 
within the time named, setting forth the action of the said board of 
public works in respect to such assessment, and stating the facts re- 
lied upon as showing an error on the part of such board. Such court 
shall rehear the matter of such assessment de novo, and confirm, lower 
or increase the same as may seem just. In case such court shall re- 
duce the amount of benefits assessed against the land of such property 
holders, or increase the amount of damages a^varded in his favor to 
the extent of ten (10) per centum of such benefits or damages, the 
plaintiff in such suit shall recover costs, otherwise not. The judg- 
ment of such court shall be final, and no appeal shall lie therefrom: 
Provided, If upon such appeal the report of the board of public works 
as to benefits or damages be greatly diminished or increased, the city 
may, upon the payment of costs, discontinue such proceedings. 

911. Assessment of benefits — Lien, — 84. On the completion of 
such assessment roll by said board of public works, the same shall be 
forthwith delivered to the department of finance, and from that time 
the respective amounts of benefits therein assessed shall severally be 
liens, superior to all other liens, except taxes, against the respective 



§ 912 CITIES OF MORE THAN TV>' ENTY-THREE THOUSAND. 638 

lots or parcels of land upon which they are assessed. Said depart- 
ment of finance shall at once prepare a duplicate of said assessment 
roll of benefits, the same to be known as the local assessment dupli- 
cate and deliver the same to the treasurer. The duties of the treas- 
urer and of the department of finance in respect thereto shall be the 
same as hereinafter more specifically prescribed with regard to assess- 
ments for street improvements. 

912. Benefits — When due — Collection,— 85. Said assessments of 
benefits shall be due and payable to the treasurer from the time of the 
delivery of said assessment duplicate to said treasurer. If not paid 
within sixty (60) days thereafter, the said city by its attorney shall 
proceed to foreclose said liens in a court of competent jurisdiction as 
mortgages are foreclosed with similar rights of redemption, and have 
the same sold to pay such assessments. Such city shall recover costs, 
w^ith a reasonable attorney's fee, and interest from the expiration of 
the sixty (60) days hereinbefore allowed for payment, at the rate of 
six (6) per cent, per annum. In all cases where the party against 
whom the assessment is made is a resident of such city, demand for 
the payment of the same shall be made by delivering to him person- 
all}^, or leaving at his last and usual place of residence, a notice of 
such assessment and demand for payment. 

See note, ante, § 451. 

913. Damages — Payment by city.-— 86. Said board of public works 
shall have power to determine what, if any, part of the damage 
awarded shall be paid out of the funds appropriated for the use of 
such board by the common council: Provided, That not more [than] 
two thousand dollars ($2,000) in damages shall be paid out of the 
city funds for any improvement or condemnation unless pursuant to an 
ordinance appropriating for the specific improvement or condemna- 
tion. All benefits assessed and collected by the treasurer shall be sub- 
ject to draft, in the usual manner, upon certificates by the board of 
public works in favor of persons in whose favor damages have been 
awarded. Any surplus remaining above actual rewards shall belong 
to such city. Said board may delay proceedings until such benefits 
have been collected. 

914. Damages — Payment. — 87. It shall be the duty of the board 
of public works upon the completion of their award of damages, or 
whenever any time for delay as above mentioned shall have expired, 
to make out certificates for the proper amounts and in favor of the proper 
persons, upon the presentation of which to the head of the department of 
finance such person shall be entitled to a warrant on the city treasury. 
Such certificates or vouchers shall, w^ienever practicable, be tendered 
actually to the person entitled thereto, but where this is impracticable 
the same shall be kept for such person in the office of said board of 
public works and the making and fixing of such certificate shall in all 
cases be deemed to be valid and effectual tender to the person entitled 



639 EXECUTIVE AXD JUDICIAL OFFICERS AND DEPARTMENTS. § 915 

thereto, and the same shall be delivered to him on request. In case 
of a dispute or doubt as to which of the various persons said money 
shall be paid, said board shall make out such certificate in favor of 
the city attorney for the use of the persons entitled thereto, and said 
attorne}^ shall thereupon draw the money and pay the same into court 
in a proper proceeding, requiring the various claimants to interplead 
and have their respective rights determined. In any case where an 
injunction is obtained because damages have not been paid or tendered, 
said board may tender such certificate for the amount thereof, with 
interest from the time of entry upon the property, if any has been 
made, and all accrued costs, and thereupon the injunction shall be 
dissolved. The pendency of an appeal shall not affect the validity of 
a tender made under this section, but such city shall be entitled to 
proceed with its appropriation of the property in question. 

915. Street — Alley — Highway — Water-course — Change of » — 88. 
Whenever a street, alley, highway or water-course shall have been 
opened or laid out, the abutters thereon may, by mutual agreement, 
change the same so as to give it a proper location, width or direction: 
Provided, They shall first obtain the consent of the common council. 
Before any such change shall be made, the persons interested therein 
shall file with the city clerk a written agreement, and shall petition 
the common council to change or alter such street, and shall state in 
their petition the reason for such change, and shall accompany the 
petition with a map or plat of the highway and the surrounding local- 
ity. 

916. Powers of common council — Opening of streets, alleys, etc» — 
Removal of obstructions. — 89. The common council shall have power 
to pass all ordinances necessary to more effectually carry into execu- 
tion the powers herein granted, and which are not inconsistent with 
the laws of the state; and they may also cause to be opened streets, 
alleys, or highways which have been laid out or opened, but which 
have not been vacated; and they shall have power to cause all obstruc- 
tions to be removed from highways, streets, alleys, or w^ater-courses, 
when necessary for the general welfare. The superintendent of police 
of said city shall have full power to open any street, alley, or highway, 
w^hen directed by the common council, and may remove any and all 
obstructions therein. When any person shall, after five (5) days' no- 
tice, fail, neglect, or refuse to remove obstructions, the superintendent 
of police shall cause the same to be done at the expense of such per- 
sons, and shall cause the city attorney to enter an action therefor; and 
in such action, judgment shall be rendered against such person for 
the reasonable expense and cost of such removal. 

STREET IMPROVEMENTS. 

917. Order for street improvement, — 90. Whenever the board of 
public works shall order the improvement of any street, alley, side- 
w^alk, or other public place in such city, in w^hole or in part, it shall 



§ 918 CITIES OF MORE THAN TWENTY-THREE THOUSAND. 640 

adopt a resolution to that effect, setting forth a description of the 
place to be improved and full details, drawings and specifications for 
such work. Notice of such resolution shall be published, remon- 
strances heard, said original resolution altered or modified, confirmed 
or rescinded, in the same manner as heretofore more specifically pro- 
vided by this act with regard to the condemnation of property and the 
opening of streets. If such original resolution be altered, confirmed 
or modified, it shall be final and conclusive on all persons, unless 
within ten (10) days thereafter, two-thirds of all the resident free- 
holders along and upon such street or alley remonstrate against such 
improvement. In case of such remonstrance, the improvement shall 
not take place unless specifically ordered by an ordinance within sixty 
(60) days thereafter passed by a two-thirds vote of the council, and 
approved by the mayor. 

See note, ante, § 454. 

For powers over streets, duties and liabilities, improvement of streets, etc., under the 
general law of 1867, and amendatory and supplemental laws, see ante, §§ 218, 223 and 
notes, and post, §§ 1107-1135 and notes. 

For constitutional provisions and decisions, see ante, §§ 4 and 11 and notes. 

918. Payment by installments. — 91. Whenever said board of pub- 
lic works shall order the improvement of any street or alley, as pro- 
vided in the preceding sections, the assessment for such improvement 
may, at the option of each property holder, be payable in ten (10) 
annual installments, as follows: Ten (10) per cent, of the principal, 
together with all accrued interest on the entire assessment, on or be- 
fore the third Monday of April next succeeding the allowance of the 
final estimates on such work by said board, except where such esti- 
mate has been made between March 15 and October 1, of any year, in 
which case such first installment, shall be payable on the first Monday 
of November next succeeding such estimate. The next payment on 
said assessment shall be six (6) months' interest on the unpaid prin- 
cipal, payable at the date for the general payment of taxes, either 
spring or fall, as the case may be, next after the installment on such 
assessment falls due. The next payment on said assessment shall be 
ten (10) per cent, of the original principal and six (6) months' inter- 
est, on the unpaid principal, payable on or before the date for the 
general payment of taxes, spring or fall, as the case may be, accruing 
one year after the first installment was payable, and so on; thereafter 
ten (10) per cent, of the original principal, with six (6) months' in- 
terest on the unpaid principal once each year and six (6) months' in- 
terest in alternate turn with each annual payment of principal and 
interest until the principal and interest have been paid. 

919, Assessment roll.- — 92. In making assessments against each 
lot or parcel of land, said board of public works shall, as soon as any 
contract has been completed for the improvement of any street or al- 
ley, make out an assessment roll with names of property holders and 
descriptions of the property adjoining the place of such proposed im- 



611 EXECUTIVE AND JUDICIAL OFFICERS AND DEPARTMENTS . § 920 

provement. Said roll shall also have set opposite each name and de- 
scription, the total pro rata assessment against each piece of property. 
When confirmed, said assessment roll shall be delivered to the head of 
the department of finance. Before the said board shall approve and 
accept the work under any contract, and allow a final estimate there- 
for, the contractors who have performed such work shall file with said 
board an affidavit of some one or more persons having knowledge of 
the facts, that all work done under such contract, and all material 
used are of the character, kind, quantity and quality required by the 
specifications on which such contract was let, and that said work has 
been done in conformity with said contract and specifications and ac- 
cording to the directions of said board and the city engineer. 
See note, ante, § 458. 

920. Final estimate — Notice — Hearing. — 93. Whenever the board 
of public works shall approve and accept the entire work under any 
contract and allow a final estimate therefor, it shall be the duty of 
such board to give one (1) week's notice by one (1) insertion in a 
daily newspaper, if any there -be, and if there be no such paper, then 
by posting notices in at least three (3) public places along the line of 
such improvement, of the time and place when and where a hearing 
can be had upon such estimate, before such board. Any person feel- 
ing himself aggrieved or injured by the acceptance of such work or by 
such estimate, shall be accorded a hearing thereon. The board may 
adjourn such hearing from time to time, and of such adjournment all 
parties interested shall take notice. After the hearing of such objec- 
tions, if any, the board may change, modify or confirm such esti- 
mate, which shall be final, and it shall thereupon be the duty of the 
department of finance to forthwith deliver to the treasurer a certified 
copy of such final assessment roll. The costs of all notices shall be 
estimated in and as a part of the total cost of any such improvement. 
Such duplicate assessment roll shall be known as the local assessment 
duplicate, and shall be appropriately prepared, showing the amount 
due on each piece of property, if paid in cash within the time limited, 
together with necessary columns, in which such assessment shall be 
extended, showing the amount of each installment, and w^ien paya- 
ble, whenever the same shall be paid in installments, together with 
the interest due at each spring and fall payment of taxes, until the 
same shall be fully paid. Said book shall also have appropriate col- 
umns in which payments may be properly credited, and also the place 
for the satisfaction of the lien by the treasurer. All assessments, 
whether payable in installments or not, shall be payable to the treas- 
urer, except as otherwise herein provided, whose duty it shall be to 
receive the same and give proper receipts therefor, and enter the 
proper credit and satisfaction in said book or duplicate assessment 
roll. 

See notes, ante, § 459. 

CiT. AND To.— 41 



§ 921 CITIES OF MORE THAN TWENTY-THREE THOUSAND. 642 

921. Agreement of persons paying by installments. — 94. Who- 
ever desires to exercise such privilege of payment by installment shall 
at any time before the expiration of fifteen (15) days after the allow- 
ance of the final estimate aforesaid, enter into an agreement in writing, 
that in consideration of such privilege he will make no objection to 
any illegality or irregularity with regard to the assessment against his 
property and will pay the same as required by law with the specified 
interest. Such agreement shall be filed in the office of the city comp- 
troller. In all cases where such agreement has not been signed and 
filed within the time limited, the entire assessment shall be payable 
in cash without interest before the expiration of said fifteen (15) days. 
After said fifteen (15) days if not paid when due, such total assess- 
ment shall bear interest at the rate of six (6) per cent, from the date 
of the final estimate. 

See note, ante, § 460. 

922. Duty of treasurer — Account of fund. — 95. It shall be the 
duty of the treasurer to receive the same, keep all accounts thereof 
and give proper vouchers thereof. The department of finance shall 
charge the treasurer with the amounts of such assessments and inter- 
est as it accrues. The department of finance shall carefully keep a 
separate account of the fund arising from each particular improve- 
ment ordered by the board of public works pursuant to this act, and 
no proceeds arising from assessments for the improvement of any 
particular street or alley shall be diverted to the payment for any 
other improvement whatever. The proceeds shall in each case con- 
stitute a separate special fund for the payment of contractors for the 
particular work, upon the allowance of estimates by the board of pub- 
lic works, or for the security and payment of street improvement 
bonds, if any are issued, as hereinafter provided for such street or 
alley. 

See note, ante, § 461. 

923. Sti'eet improvement bonds, — 96. For the purpose of antici- 
pating the collection of such assessments, the department of finance 
shall issue street or public improvement bonds, payable out of the 
funds actually paid to and collected by such city on such account, the 
proceeds of the same to be applied exclusively to payment for the im- 
provement on the particular street or alley for the anticipation of the 
assessment for which the same are issued. Bonds shall be issued for the 
principal of such assessment or assessments, and appropriate coupons 
shall be thereto attached, evidencing and representing the semi-annual 
interest. The bonds shall bear interest at a rate not exceeding six 
(6) per centum per annum, to be computed from the date of the final 
estimate, which interest shall be payable semi-annually as herein pro- 
vided. In cases where the final estimate is allowed at any time dur- 
ing the period intervening between the first day of May and the 
first day of November in any year, the bonds and coupons shall be 



643 EXECUTIVE AND JUDICIAL OFFICERS AND DEPARTMENTS. § 923 

dated on the first day of January of the year following, and in cases 
where the final estimate is allowed at any other period in any other 
year than that intervening between the first day of May and the first 
of November in any year, the bonds and coupons shall be dated on the 
first of July following. The interest shall be computed from the date 
of the final estimate up to the date of such bonds, and the coupons 
shall properly evidence and provide for such interest computed as-afore- 
said from the date of the final estimate. Each bond shall bear the name 
of the street or alley for w^hich it is issued, in cases where it is issued 
for street improvement assessments, and in cases where it is issued for 
sewer or other assessments shall appropriately designate the improve- 
ment or work for which it is issued. Assessments in cases where the 
option to pay in installments is exercised shall be payable as follows : 
Ten (10) per centum of the principal, together with all accrued inter- 
est on the same, on or before the first Monday of May next succeed- 
ing the allowance of the final estimate on such work by the board, 
except where such estimate has been made between March first and 
October first of any year, in which case such first installment shall be 
payable on the first Monday of November next succeeding such esti- 
mate ; the next payment shall be six (6) months' interest on the en- 
tire unpaid principal payable at the date for the general payment of 
taxes, either spring or fall, as the case may be, next after the first in- 
stallment falls due ; the next payment shall be ten (10) per centum 
of the original principal and six (6) months' interest on the unpaid 
principal, payable on or before the date for the general payment of 
taxes, spring or fall, as the case may be, occurring one (1) year after 
the first installment was payable; and so on thereafter, ten (10) per 
centum of the original principal, with six (6) months' interest on the 
unpaid principal once each year, and six (6) months'' interest on the 
unpaid principal in alternate turn with the annual payment of princi- 
pal and interest, until the entire principal and interest have been paid. 
It being hereby intended and provided that installments of principal 
and interest shall be paid in advance of the maturity of the 
bonds and coupons, in order to enable the treasurer to pay such 
bonds and coupons as they respectively -fall due, for which purpose 
the said treasurer shall hold the money paid to him. It shall 
be the duty of the treasurer to promptly and properly apply all money 
paid in on such installments to the holder of the bonds and cou- 
pons, and he shall not use the mone^^ received by him in payment of 
such installments for any other purpose whatever than that of paying 
the bonds and coupons, and shall promptly ascertain the amount paid 
in on such installments, and without delay pay the same to the bond 
and coupon holders entitled thereto. It shall be the duty of the treas- 
urer, in all cases where any property owner is in default in the pay- 
ment of any installment, or any part thereof, chargeable upon or 
against his property, to assess a penalty of ten (10) per centum upon 
any installment, or any part thereof, with six (6) per cent interest, for 
such delinquency, which said penalty and interest, when collected. 



§ 923 CITIES OF MORE THAN TWENTY-THREE THOUSAND. 644 

shall be and become the property of the city. And the treasurer shall, on 
the first day of January, of each year, certify to the county auditor, a 
list of such delinquency or delinquents. And the county auditor, be- 
tween the first Monday of November and the first day of January, in 
each year, shall enter on the tax duplicate as delinquent, against the 
name of each person remaining delinquent, such delinquent special 
assessments so certified to him by the treasurer, as aforesaid, against 
the lands and lots described in such certification of the treasurer, which 
said assessments shall be carried out with the taxes for state, county, 
township, road, city, school or other purposes, if any delinquent, into 
one total. Payment of such special assessment, with interest, penalty 
and costs, shall be enforced by the sale of the lands and lots liable 
therefor, or so much thereof as may be necessary, which sale shall be 
made by the county treasurer in the same m^anner, and at the same 
time and place, and upon the same notice as is prescribed by law for 
the sale of lands and lots for the payment of delinquent state, county, 
tovv^nship, road, city, school and other taxes, the property to be offered 
for sale and sold for the payment of all taxes and assessments of 
every kind, for which the same is liable, with interest, penalty and 
costs thereon, as one entire sum, and not separately for said special 
assessments, unless said special assessments are the only taxes or as- 
sessments delinquent, in which case such property may be sold to sat- 
isfy said special assessment alone. Payment of the bid, upon the sale 
of any such lands and lots, shall be enforced so far as it relates to such 
municipal assessments, together with the penalties above provided for, 
by the same officer, and in the same manner as is provided for by 
law for the enforcement of the payment of a bid made upon the 
sale of lands and lots for the state, county, township, road, city, 
school and other taxes, and the proceeds of sale shall be held by the 
treasurer and paid to the parties entitled thereto: Provided, however, 
If any lands or lots are sold for the payment of any delinquent spe- 
cial assessment together with other delinquent taxes, or for special as- 
sessments alone, said lands and lots shall not be released from the 
payment of the balance of said assessments or the interest thereon as 
the same becomes due, and if delinquent, to be sold as hereinbefore 
provided. The guarantee required by law to be endorsed by the 
county treasurer upon each certificate given by him upon a purchase 
of lands and lots for state, county, township, road, city, school and 
other taxes shall in every case where such sale is made for said mu- 
nicipal assessments also apply to and embrace the amount of such mu- 
nicipal assessments for which sale was made, and the holder of such 
certificate shall have the same remedy upon such guaranty as to mu- 
nicipal assessments embraced therein that he has as to the state, county, 
township, road, city, school and other taxes, to which the same relates. 
All provisions of law in reference to the certificates to be issued to 
a purchaser of lands and lots upon sale for state, county, town- 
ship, road, city, school and other taxes, the making of deeds upon 
failure of redemption and as to the force and effect of such deeds, the 



I 



645 EXECUTIVE AND JUDICIAL OFFICERS AND DEPARTMENTS. § 923 

effect of such sale and the rights of the purchaser, redemption there- 
from, for the quieting of title acquired thereunder, ior transferring to 
the purchaser the original lien for the taxes and municipal assess- 
ments for which the sale was made and subsequent assessments paid, 
and for the enforcement of such lien by judicial proceedings vv^hen the 
purchaser fails to acquire a valid title by virtue of the purchase, and 
as to the interest and penalties to be collected upon redemption from, 
such sales before deed is made, or upon judicial proceedings to quiet 
the title or enforce the lien of the purchasers; and all other provisions 
of law relating to the collecting and accounting for the state, county, 
township, road, city, school and other taxes, shall, so far as the same 
are applicable, apply with like force and effect in the case of munic- 
ipal assessments in cities of the class referred to in this act. Said 
board may provide in its original resolution of improvement for 
the issue of such bonds and coupons directly to the contractor, in 
which case it shall be the duty of the department of finance, upon 
the allowance of the final estimate made by the board of public 
works, to issue the same directly to the contractor; otherwise 
they shall be issued and sold as other city improvement bonds: Pro- 
vided, lioivever, That the city can, at its option, turn over to the con- 
tractor said bonds, at par, in pa3axLent of the contract price for which 
said bonds were issued. After the issue of such bonds no suit shall 
lie to enjoin the collection of any assessment, and the validity of the 
same shall not be questioned, but all property owners shall be conclu- 
sively estopped and precluded from in any manner assailing the effect- 
iveness or validity thereof. Such bonds, when issued, shall convey 
and transfer to the owners thereof all lien, right, title and interest in 
and to the assessments and liens upon the respective lots and parcels 
of ground hereinbefore provided for, which liens shall stand as secur- 
ity for such bonds and coupons until they are paid, with full power to 
enforce the collection thereof, if such bond or coupon be not paid on 
presentation to the treasurer, by foreclosure in any court of competent 
jurisdiction, as provided in the preceding section, and sales to satisfy 
such bonds and coupons shall be made as hereinbefore provided for 
sales upon judgments for decrees foreclosing liens for assessments 
levied for street improvements: Provided, That the first bondholder who 
institutes foreclosure suit in any court of competent jurisdiction 
against such property, or any lot or parcel thereof, shall be entitled to 
have the proceeds of said suit applied pro rata to the payment of his 
own bonds and of bonds held by others. The property upon which 
the assessment is laid shall, in no event, be sold for less than the 
amount of the assessment, attorneys' fees and costs, and the avails of 
the sale shall be distributed as herein provided. If the property be 
sold for more than enough to pay the principal, interest, attorneys' 
fees, costs and expenses, the surplus shall be paid to the property 
owner or party law^fully and rightfully entitled thereto. No more 
than one foreclosure suit shall be brought against any one lot or par- 
cel of land, but all lots or parcels of lands, the assessments against 



§ 924 CITIES OF MORE THAN TWENTY-THREE THOUSAND, 646 

which are in default, may be joined in one proceeding. All bonds, 
as herein provided, shall be negotiable as inland bills of exchange 
and be free from all defenses by any property owner or property 
owners. It shall not be necessary in said bonds to recite the steps 
taken in ordering such improvement or directing the assessments, but 
it shall be sufficient to make a general reference to such assessment 
and to the statute. 

924. Failure to pay installments — Effect. — 97. Failure to pay 
any installment of principal or interest when the same is due shall 
bring all installments of principal yet unpaid forthwith due and pay- 
able. If such city shall fail to collect any unpaid assessment, or in- 
stallment thereon when due, no liability shall thereby accrue against 
such city, but the owner of the bonds hereinbefore provided for, or 
in case no bonds have been issued, then the person to whom is due 
and owing the amount of such unpaid assessment for the pef ormance of 
such work, shall have the right to proceed in any court of competent 
jurisdiction to foreclose the liens on unpaid assessments, recovering 
interest, cost and a reasonable attorney's fee, and to have the proceeds 
of sale applied on his claim. It shall be the duty of the county clerk 
to certify to the treasurer all satisfactions of assessment liens by such 
sale, and the treasurer and comptroller shall enter the same of record. 

See note, ante, § 463. 

925. Levees, viaducts, tunnel or aqueduct, water-course, drain- 
age.— 98. Whenever the board of public works shall order the erec- 
tion or change of [any] levee or the construction of any viaduct, 
tunnel or aqueduct, or the change of any water-course, natural or 
artificial, or the drainage of section of ground, it shall cause the 
necessary drawings and specifications to be prepared for the work and 
filed in such office, and shall publish a notice of the resolution order- 
ing the work to be done; shall hear remonstrances, modify, confirm 
or rescind their original resolution, prepare a list of property holders 
beneficially or injuriously affected by such work, advertise for bids 
for such work, let the same by contract, assess benefits and award 
damages, and in these and all other respects proceed in accordance 
with the provisions of this act relating to the appropriation of prop- 
erty and the laying out of streets 

926. Assessments — Liens — Collection. — 99. The provisions of this 
act for the liens of assessments, preparation of the duplicate assess- 
ment roll by the department of finance, delivery of such roll to the 
treasurer, the collection of assessments, right of election of property 
holders to pay the same in installments, the issue of bonds to antici- 
pate the same, and all other provisions with regard to street improve- 
ment assessments, shall govern in the manner of levee assessments so 
far as the same are applicable. 

927. Sewers and drains. — 100. Whenever the board of public 
works shall order the construction of any sewer or public drain, it 
shall cause the necessary drawings and specifications for such work to 



647 EXECUTIVE AND JUDICIAL OFFICERS AND DEPARTMENTS § 928 

be prepared and filed in such office, shall publish a notice of the reso- 
lution ordering the work to be done, shall hear remonstrances, mod- 
ify, confirm or rescind their original resolution, and shall advertise 
for bids and let the same by contract as more specifically provided in 
this act with relation to the appropriation of property and laying out 
of streets. 

See notes, ante, § 466. 

For sewers, drains, etc., and constrnction of, under the general law, see ante, § 124, 
clauses 26 and 43 and notes, §§ 127 and 183 and notes, and post, § 1090, et seq., and notes. 

928. Local sewers. — 101. Whenever any such sewer shall from 
its size and character be intended and adapted only for local use by 
property-holders along the line of the street or alley on which it is 
constructed, and in the opinion of such board is not intended or 
adapted for receiving sewage from collateral drains, then, and in that 
case, the w^hole cost of such improvement shall be paid for by the 
property holders abutting on such street or alley in the same manner 
and to the same extent as street improvements are paid for, except 
that such city shall not be liable for the portions of such local sewer 
which cross other streets or alleys, but the total costs shall be appor- 
tioned pro' rata against the property holders. 

See notes, ante, § 467. 

929. Geiieral sewers — Cost — How paid. — 102. Whenever, in the 
opinion ©f such board, any sewer or drain ordered to be constructed, 
or any enlargement of one already constructed shall, from its size and 
character be intended and adapted not only for use by abutting prop- 
erty holders along the line of such drain or sewer, but it is also in- 
tended and adapted for receiving sewage from collateral drains already 
constructed, or which may be constructed in the future, then, and in 
that case, the cost and expense of such sewer shall be assessed against 
each piece of property beneficially affected, in proportion to the bene- 
fits received, including abutting property holders, as well as the hold- 
ers not situated on the line of such drain or sewer, but, in the opinion 
of the board, beneficially affected by the construction of such sewer, 
either directly or immediately or indirectly, and by way of the advan- 
tage v/hich shall be realized in the future when collateral drains may 
be constructed from such property to such main sewer: Provided, 
That whenever in the opinion of the board of public works the whole 
or any part of the cost of any sewer or public drain mentioned in the 
preceding section should be paid out of the public treasury, such board 
may so order and provide. 

930. Assessments — Collection. — 103. The provisions of this act 
relating to the assessment for street improvement shall govern such 
board in making its assessments for the cost of any local sewer or 
drain, or the equivalent thereof. In construction or enlargement of 
any sewer or drain adapted for more than local use, the provisions of 
this act relating to the assessment of benefits in the laying out of 



§ 931 CITIES OF MORE THAN TWENTY-THREE THOUSAND. 648 

streets, shall govern such board in assessing benefits. The assess- 
ment roll, when completed according to these provisions, shall be de- 
livered to the department of finance in the same manner as street im- 
provement assessment rolls. The department of finance and the treas- 
urer shall thereupon discharge the same duties in respect thereto as 
are hereinbefore prescribed in relation to street improvement assess- 
ments by installments, and the issuance of bonds to anticipate the 
same, shall also apply to the payment of assessment for the construc- 
tion of sewers, drains, levees, or for the change of any water-course, 
or the drainage of any section of ground. 

SPRINKLING OR SWEEPING. 

931. Contracts for sprinkling and sweeping. — 104. Whenever such 
board of public works shall order any street, alley or public place to 
be sprinkled or swept, it shall cause the necessary specifications for 
such work to be prepared and filed in such office, shall publish a reso- 
lution ordering the work to be done, shall hear remonstrances, modif}^, 
confirm or rescind their original resolution, and shall advertise for 
bids, and let the same by contract, as more specifically provided in 
this act with relation to the appropriation of property and the laying 
out of streets. 

932. Cost — Assessment. — 105. The cost of such sprinkling shall 
be assessed pro rata against the property holders along the line 
of such street, alley or public place, as the cost of street improve- 
ments is assessed, except that such city shall not be liable to pay for 
the sprinkling of any street or alley crossing, but the total cost of 
such sprinkling shall be paid for by the abutting property holders. 
The cost of sweeping shall be paid by the city out of the general fund. 
Such board may, at its option, embrace in one order or resolution, 
and also in one contract, any number of streets, alleys or public places 
for which the specifications for such sprinkling or sweeping are uni- 
form. Or such board may include in one resolution and contract such 
streets as to which the specifications for sprinkling and sweeping are 
not uniform: Provided, That such contract and the bids therefor shall 
separately state the cost of sprinkling and sweeping streets or alleys 
with regard to the specifications to such sprinkling or sweeping. In 
such cases such board may accept part of such bid on one group of 
streets uniform in their specifications, and reject other parts of such 
bids on other groups of streets. 

See notes, ante, §§ 472, 473. 

933. Assessments — When payable. — 106. The duties of the de- 
partment of finance and of the treasurer, the rights of contractors and 
the liability of such city in relation to such street sprinkling assess- 
ments, shall be the same as in the case of street improvement assess- 
ments, but such assessments shall be payable on the first Monday in 
November, for any one year, in the manner that street improvement 



649 EXECUTIVE AND JUDICIAL OFFICERS AND DEPARTMENTS. § 934 

assessments are paj^able. The provisions of this act in relation to the 
payment of street improvement assessments by installments, and the 
issuing of bonds to anticipate the same shall have no application to 
street sprinkling assessments. 

DEPARTMENT OF PUBLIC SAFETY. 

934. Board of public safety — Appointment — Bond — Salary. — 107. 

The department of public safety shall be under the charge of a board 
of three (3) commissioners to be appointed by the mayor of such city 
as hereinbefore provided. No more than two (2) of said commis- 
sioners shall be of the same political party. Said commissioners shall 
give bond to such city, to be approved by and filed with the depart- 
ment of finance for the faithful performance of their duties, respect- 
ively, as required by ordinance. Said board shall have the care, 
management and supervision and exclusive control of all matters re- 
lating to the fire and police force, fire alarm, telegraph, erection of fire 
escapes, inspection of buildings and boilers, market places, and food 
sold therein, pounds and prisons. Said board shall have power to 
purchase all necessary supplies and apparatus and make all repairs 
needed in its department, subject to the same provisions as are herein 
prescribed for the exercise of similar powers by the department of 
public works. Said commissioners shall receive annual salaries of 
four hundred dollars ($400) each. 

Fire department and metropolitan police and fire department under the general law, 
see ante, §§ 256, et ssq., and 296, et seq., and notes. 

935. Bules — Quorum — Chairman — Kecord.— 108. Said commis- 
sioners shall adopt rules for appointment of members to said fire and 
police forces, their regulation and duties, subject, however, to the 
laws of the state and to the ordinances of the common council. Any 
two (2) of said commissioners shall constitute a quorum. Said com- 
missioners shall adopt rules and regulations vv^ith regard to the time 
of the holding regular and called meetings and of giving notice 
thereof. They shall elect one (1) of their number as chairman, who 
shall hold such position as long as may be prescribed by the rules of 
said board. Said commissioners shall cause all of their proceedings 
to be carefully recorded by their secretary. They shall only act as a 
board, and no member thereof shall have power to bind said board, or 
such city, except pursuant to resolution of such board, authorizing 
him to act in that behalf as its authorized agent. Said commissioners 
shall have the care and charge of all property of every kind pertain- 
ing to the fire and police force and to the market places, pounds and 
prisons of such city. 

936« Powers and duties of board. — 109. Said commissioners shall 
appoint a superintendent of police, chief of the fire force and all other 
officers, members and employes of said fire and police forces, together 
with a market-master and weighmaster and other officials necessary 



§ 937 CITIES OF MORE THAN TWENTY-THREE THOUSAND. 650 

for such department of public safety. The annual pay of such ap- 
pointees shall be fixed by ordinance of the common council, and it 
shall be lawful in such ordinance to grade the members of such forces 
and to regulate their pay, not only by rank, but by their length of 
service. In default of any ordinance fixing the compensation for 
any member of such fire or police force, said commissioners shall have 
power to fix the same, subject to change by ordinance by said council. 
Said commissioners of public safety may also fix the number of mem- 
bers of said fire and police forces and the number of appointees for 
other purposes, subject to the approval of the council: Provided, That 
such commissioners shall not have the power to appoint more than one 
patrolman for each ten hundred inhabitants in such city. Said com- 
missioners of public safety shall in like manner divide such city into 
police precincts and fire districts. Said commissioners shall also have 
power to make and promulgate rules and regulations for the appoint- 
ment of members to such forces, and for their government. The 
superintendent of police shall have exclusive direction and control of 
the police force, and the chief of the fire force shall have exclusive 
control and charge of such fire force, subject to the rules, regulations 
and orders of said department of public safety. In times of peril, 
danger, riot, extensive conflagration, disorder or the apprehension 
thereof, said chief of the fire force and the superintendent of the 
police force shall, for the time being, be subordinate to the mayor, 
and obey his orders and directions, anything to the contrary in this 
act or in the ordinances of such city or in the regulations or orders of 
such commissioners of public safety to the contrary notwithstanding. 

937. Firemen and police — Terms — Removal. — 110. Every mem- 
ber of the fire and police force, and all other appointees of the com- 
missioners of public safety, shall hold ofiice until they are removed 
by the board. They may be removed for any cause other than politics, 
and the written reasons for such removal shall be entered upon the 
records of such board: Provided, That the membership of the fire 
and police force shall be and remain (as nearly as possible) equally 
divided between the two political parties casting the largest number 
of votes at the last preceding city election. 

938. Punishment of firemen and policemen. — 111. On conviction 
of a member of the said fire or police force for any criminal offense or 
neglect of duty, or of violation of rules or neglect or disobedience of 
orders, or incapacity, or absence without leave, or conduct injurious 
to the public peace or welfare, or immoral conduct, or conduct unbe- 
coming an officer, or other breach of discipline, said commissioners 
shall have power to punish the offending party by reprimand, for- 
feiture, suspension without pay, dismissal or by reducing him to a 
lower grade and pay. 

939. Powers of policemen. — 112, The ofiicers and members of 
such police force shall possess all the common law and statutory powers 
of constables, except in relation to the service of civil process, and any 
warrant of search or arrest issued by any judge, magistrate, mayor, or 



651 EXECUTIVE AND JUDICIAL OFFICERS AND DEPARTMENTS. § 940 

justice of the peace of this state, may be executed in any part thereof 
by any member of said police force, subject to the laws of this state 
governing arrests and bail. The members of such police force shall 
have the exclusive power, and it shall be their duty to serve all process 
within such city, issuing from the city court. They shall be con- 
servators of the peace in such city, and shall arrest without process all 
persons who within view commit any crime or misdemeanor contrary to 
the statutes of this state, or ordinances of such city, take them before 
the judge of such city, or other officers having jurisdiction of the 
offense with which such person is charged, and retain them in custody 
until the cause of such arrest has been investigated, suppress all 
breaches of the peace within their knowledge, and authority is hereby 
given to them to call to their aid the power of such city; to pursue 
and commit to jail all felons and persons guilty of misdemeanors or 
crimes in violation of the statutes of this state or of the ordinances of 
such city. They shall have the exclusive power, and it shall be their 
duty to serve all process issued by the common council, or any com- 
mittee thereof, pursuant to this act, or by any of the executive depart- 
ments of such city. The board of public safety shall detail some one 
member of said force, or as many as it may deem necessary, to attend 
the city court and preserve order therein. 

For powers and duties of city marshal, police officers, constables, etc., under the general 

law of 1867, see ante, §§ 94, 95 and notes. 

940. Duty as to prisoners. — 113. The members of the police 

force, under the direction of the superintendent thereof, shall convey 
prisoners to and from the county jail or station houses of such city for 
arraignment or trial in the city or any court having jurisdiction, or to 
the house of correction, work-house, reform school, county jail or 
other place of punishment or imprisonment, under judgment, sentence, 
order, or process of such court. 

941. Detail of policemen-— Additional policemen. — 114. Said com- 
missioners shall have po¥/er, on application of any person or corpora- 
tion, if deemed expedient, to detail regular patrolmen of the police 
force or fire force, or appoint and swear any additional number of 
special policemen or firemen to do special duty at any place within 
such city, upon such person or corporation paying for the use of such 
city the same rate per diem of service on such detail of special duty as 
is paid to the regular members of the force. Such special patrolmen 
shall be subject to the superintendent and such special firemen to the 
chief of the fire force. They shall obey the rules and regulations of 
their respective departments, conform to its discipline and orders, and 
wear such dress or badge as the commissioners may direct, and shall, 
during the term of their appointment, possess all the powers, privi- 
leges and duties of regular patrolmen or firemen. Such persons so 
appointed may be removed at anytime by said commissioners without 
notice and without assigning any cause. Said commissioners may 
also, upon emergency or apprehension of riot, tumult, mob or insur- 



§ 942 CITIES OF MOKE THAN TWENTY-THREE THOUSAND. 652 

rection, pestilence or invasion, appoint as many special patrolmen as 
may be desirable, to be paid the same rate per day and possess the 
same powers, privileges and duties as members of the regular force, 
and be subject to the same ordinances, regulations and orders. Such 
patrolmen and firemen shall wear badges furnished by their respective 
departments. Such commissioners may also detail members from the 
regular forces for the use of the department of health, or any depart- 
ment of the city government. 

942. Oaths — Wlio may administer. — 115. Said commissioners 
and superintendents of fire and police are authorized to administer 
oaths to any person summoned in any proceeding authorized by this 
act, or to take any deposition under the rules, regulations or orders of 
said department of public safety. 

943. Duties of policemen.— 116. It is hereby made the duty of 
said police force, at all times within such city, and the members 
thereof are specially empowered to preserve peace, prevent crime, de- 
tect and arrest offenders, suppress riots, mobs and insurrections, dis- 
perse unlawful and dangerous assemblages and assemblages which ob- 
struct the free passage of public streets, sidewalks, parks and places, 
protect the right of persons and property, guard the public health, 
preserve order at elections and public meetings, direct the movement 
of teams and vehicles in streets, alleys or public places, remove all 
nuisances in public streets, parks or highways, arrest all street beg- 
gars, provide proper police assistance at fires, assist, advise and pro- 
tect strangers and travelers in public streets or at railroad stations, 
carefully observe and inspect all places of business under license, or 
required to have the same, all houses of ill fame or prostitution, and 
houses where common prostitutes resort or reside, all lottery or policy 
shops, all gambling houses, cockpits, dance houses, resorts, and to 
suppress and restrain all unlawful or disorderly conduct or practices, 
enforce and prevent the violations of ordinances and laws in force in 
such city. The superintendent of police and each captain in his pre- 
cinct shall possess the power of supervision and inspection over all 
pawnbrokers, venders, junk shop keepers, cartmen, expressmen, deal- 
ers in second hand merchandise, intelligence offices and auctions, and 
any member of such force may be authorized b}^ the superintendent 
to exercise the same powers, by authority in writing. Said superin- 
tendent or any captain may, by written authority, empovv^er any mem- 
ber of such police force, when in search of stolen property, of evi- 
dence, or of suspected offenders, to examine the books, business or 
premises of any of the persons named in this section and to examine 
property in whosoever possession the same shall be. 

9M. Oamiiig houses. — 117. If any member of such force, or if 
any two or more householders in such city shall report in writing, 
under his or their signature, to the superintendent of police that there 
are good grounds (and stating the same) for believing that any house, 
room or premises within such city is kept or used as a common gam- 
ing house, room or premises, for therein playing for wagers of money, 



653 EXECUTIVE AND JUDICIAL OFFICERS AND DEPARTMENTS. § 945 

at any game or chance, or to be kept for lewd or obscene purposes of 
amusements, or for the deposit or sale of lottery tickets or policies, it 
shall be lawful for said superintendent to authorize any member or 
members of said police force, in writing, to enter the same, w^ho shall 
forthwith arrest all persons there found offending against law, and 
seize all instruments of gaming or lottery tickets, and deliver the same 
to the superintendent, who shall destroy them. 

945. Arrest — Duty on making. — 118. Whenever an arrest has 
been made by any member of such police force, it shall be the duty of 
the officer in making the arrest to forthwith bring the person arrested 
before the city judge or court having jurisdiction thereof, to be dealt 
with according to law; if the arrest is made during the hours when 
such court is not in session, such offender shall be detained in the 
city prison until there shall be an opportunity for such hearing at the 
earliest practicable time, or until he shall have given bond for his ap- 
pearance, and no person shall be detained longer than twenty-four 
hours without such examination, except when Sunday intervenes, in 
v^hich case no person shall be detained longer than forty-eight hours; 
any person or corporation who shall interfere with said commissioners 
of public safety or their appointees, in the legal discharge of their 
duties, shall upon conviction be fined not more than one thousand 
dollars ($1,000), to which may be added imprisonment for not more 
than ninety (90) days. 

940. Bonds of appointees. — -119. Said commissioners shall have 
power, subject, however, to city ordinances, to adopt rules regulating 
the giving of bond by any appointee or class of appointees in such 
department for faithful performance of official duty. 

947. Board of public works— Performance of duties of board of 
public safety.— 120. The board of public works shall, in addition to 
their powers and duties as such board, possess all the powers and per- 
form all the duties of the board of public safety, until twelve o'clock 
noon of the first Monday in September, 1902, except as to the police 
and police department of such city, which shall be governed and con- 
trolled by the laws now and heretofore in force, until said date. On 
and after twelve o'clock noon of said first Monday of September, 1902, 
the members of the board of public safety shall possess all the powers 
and perform all the duties conferred and imposed by the provisions of 
this act, upon such board: Provided, That the mayor of such city 
shall not appoint a board of public safety until the said first Monday 
in September, 1902. 

948. Pensions and pension fund.— 121. The act of the general 
assembly of the state of Indiana entitled, ''an act concerning pensions 
for disabled or retired firemen and dependents of deceased firemen, 
providing for pensioning the widows and orphans of deceased fire- 
men; providing for pensioning the dependent wives and children of 
retired or disabled firemen; providing for pensioning dependent fathers 
and mothers and dependent brothers and sisters of disabled or retired 
firemen; providing for a fund out of which such pension shall be 



§ 949 CITIES OF MORE THAN TWENTY-THREE THOUSAND. 654 

paid; providing for a board of trustees for the management and dis- 
tribution of such fund; providing and prescribing regulations relative 
to the mode of obtaining, preserving, using and disbursing such fund; 
declaring to what cities and fire departments this act shall apply; 
repealing former acts and declaring an emergency," approved 
February 23, 1895, shall be and is hereby continued in force as to all 
cities governed by the provisions of this act, as fully and effectually 
as if incorporated herein. 

See post J § 1476, et seq. 

DEPARTMENT OF ASSESSMENT AND COLLECTION. 

949. City treasurer — ^Office abolished.— 122. That on and after 
the first Monday in September, 1902, the office of city treasurer in 
all such cities shall be abolished, and the records, books and papers 
thereof, except as otherwise herein provided, shall be turned over to 
and preserved by such other officers of said city as the common coun- 
cil of such city may designate. 

950. Treasurer of county to be city treasurer — Duties. —123. 
The treasurer of the county in which any such city is situated shall 
thereafter perform all the duties which by law or the ordinances of 
such city were required to be performed by the treasurer thereof, ex- 
cept as herein otherwise provided, in the same manner and with like 
effects as such duties were required to be performed by such city treas- 
urer; he shall, immediately upon succeeding to the discharge of such 
duties, and before entering upon the same, take an oath to honestly 
discharge such duties, and execute a bond, payable to the state of In- 
diana, with at least four (4) freehold sureties, to the approval of the 
common council of such city, in a penalty to be prescribed by them, 
not less than the estimated amount of all taxes, including delinquent, 
to be levied and collected for municipal and school purposes in such 
city for the current year, conditioned that he will honestly and faith- 
fully discharge the duties of his office so far as they relate to or affect 
such city, and safely keep and properly account for and pay over to 
the proper person or authority all moneys and property of such city 
which may come into his hands, which bond shall be filed with and 
preserved by the department of finance. 

See ante, §490, and post, §1412 and notes. 

For treasurer's duties under the general law of 1867, see ante, §§ 97, 103, and post, 
§ 1060 and notes. 

95i, Duties of treasurer. — 124. The city treasurer of any such city 

on the first Monday in September, 1902, shall make settlement with the 
city clerk for all moneys collected and disbursed by him, and there- 
upon a statement shall be prepared, which shall be signed by him and 
attested by such clerk, in which shall be shown the amount of moneys 
in his hands belonging to the general fund and each other fund of 
which separate accounts are required to be kept by law or the ordi- 
nances of such city, and the total amount of all such funds. A par- 



00 



EXECUTIVE AND JUDICIAL OFFICERS AND DEPARTxMEXTS. S 952 



ticular description shall also be given of all bonds and other securities 
and property in the hands of said treasurer belonging to said city. 
Said treasurer shall present such statements to the county treasurer, 
and forthwith pay over to him all the funds of such city in his hands 
as shown therein, and also deliver to him all the bonds, securities and 
other property described in such statement; and said county treasurer 
shall give a receipt therefor, showing the amount of money received 
on account of each fund, and the total amount received, describing 
the bonds, securities and other property received, which [receipt] said 
city treasurer shall deliver to the city clerk, who shall issue a quietus 
therefor. 

952. Settlement by treasurer — ^Collection of taxes. — 125. Said 
cit}^ treasurer shall also, on the first Monday in September, 1902, 
make a settlement with the city clerk on account of the tax duplicate 
and delinquent list which may then be in his hands for collection. 
He shall enter upon said duplicate and list, opposite the name of each 
person from whom he has collected any taxes, a statement of the fact 
showing the amount collected, and at the end of such du|)licate and 
list the aggregate amount of all taxes of each kind collected by him 
shall be deducted from the aggregate amount of each kind of tax 
shown in said duplicate and said list, and the remainder of each kind of 
tax shown in said duplicate and said list, and the remainder of each kind 
of tax uncollected shall be stated, and the same shall be signed by said 
treasurer and attested by the clerk. Said tax duplicate and delinquent 
list shall then be delivered by said treasurer to the county treasurer, 
v/ho shall give him a receipt therefor, stating therein the amount of 
each kind of tax therein remaining uncollected and the aggregate of 
all such taxes, which receipt shall be filed with the city clerk. Said 
county treasurer shall thereupon proceed to collect the taxes con- 
tained in said duplicate and list in the same manner as he is required 
by law to collect taxes for state, county, township, road and other 
purposes upon the county tax duplicate and delinquent list, and shall 
make afettlement on account thereof with the county auditor at the 
same time and in the same manner as he is required by law to make 
his settlements on account of the county tax duplicate. 

953. Payment of money into treasury. — 126. Whenever by law, 
or the ordinance of any such city, a license or special tax, or sum of 
money other than taxes contained upon the tax duplicate, shall be re- 
quired to be paid by any person into the treasury of such city, such 
person shall obtain from the department of finance a statement show- 
ing the amount to be paid, and on what account, and present the 
same to the county treasurer, whose duty it shall be to receive and 
collect said amount, and give to the person paying the same a receipt 
showing the amount paid and on what account, which receipt such 
person shall deliver to the department of finance, who shall thereupon 
issue to such person a license or quietus as may be proper. 

954. City treasurer to deliver precepts, — 127. The city treasurer 
of any such city on the first Monday in September, 1902, as herein 



§ 955 CITIES OF MORE THAN TWENTY-THREE THOUSAND. 656 

provided shall deliver to the sheriff of the county, all precepts for the 
collection of street, sewer, drain and other assessments of like charac- 
ter which may be in his hands unexecuted; and thereafter all such 
precepts shall be directed and issued to such sheriff, who shall execute 
the same and make conveyances in execution of sales made by the 
city treasurer, the same in all [respects] as such precepts are required 
to be executed and conveyances made by such city treasurer, for which 
services such sheriff shall receive the same fees as are allowed by law 
to the city treasurer, to be paid in the same manner. 

955. Taxation — Assessments. — 128, Beginning with the year 
1900, and thereafter, the assessment and appraisement for taxation for 
state and county purposes of all real and personal property and polls, 
subject to taxation within any such city shall be made pursuant to the 
provisions of the act of the general assembly of the state of Indiana, 
entitled, ''An act concerning taxation,'' approved March 6, 1891, and 
all acts amendatory thereof and supplemental thereto, as the same 
shall have been equalized by the county board of review and the state 
board of tax commissioners, including all additions made thereto by 
said boards, or either of them, and all assessments and appraisements 
made by the auditor of the county in which such city is situated shall 
be the basis upon which the common council of any such city shall 
levy and assess the taxes for city, school and library purposes, which 
they respectively shall deem it necessary to levy, within the limitation 
hereinafter prescribed and the taxes so levied shall become and con- 
tinue liens upon the property upon which they are levied at the time, 
and in the manner and to the extent that taxes levied for state, county 
and other purposes become and continue liens upon such property by 
virtue of the provisions of the acts herein referred to. 

See ante, § 856. 

See Taxation, 3 E. S. 1894, ch. 108 (§§8408-8677), Bums' Siipp. 1897, ch. 108 (§8411, 
et seq.) , and Acts 1899, pp. 422, 430, 497, 516. 
See ante, §212, et seq., and notes. 

956. Duty of county auditor,— 129. It shall be the duty of the 

auditor of the county in which any such city is situated to make out 
and deliver to the department of finance of said city in each year, 
beginning with the year 1899, a certificate under the seal of the board 
of commissioners of such county, showing the aggregate assessment 
and valuation for taxation for state and county purposes, for the year 
in which such certificate is made, of all taxables, real and personal, 
and railroad property in such city, and the number of taxable polls 
therein, as the same shall have been returned by the assessor of the 
township in which such city, or any part, is situated, and as equalized 
by the county board of review and state board of tax commissioners, 
which certificate shall be so made and delivered by said auditor imme- 
diately after the assessment and valuation of such property and polls 
has been completed and returned to his office. 

057. Levy of taxes— Limit.— 130. Such department of finance 



657 EXECUTIVE AND JUDICIAL OFFICERS AND DEPARTMENTS. § 958 

shall lay such certificate before the common council of such city at its 
regular sitting next held after such certificates are received, and there- 
upon such common council shall proceed, in the manner hereinbefore 
prescribed by law, to levy such tax upon the amount of property and 
polls shown in such certificate as may be deemed necessary by them 
to supply the needs of such city during the ensuing year for city, 
school and other purposes for which taxes may be properly levied: 
Provided, however, That it shall be unlawful for the common council 
to levy a tax or taxes for any one year exceeding in the aggregate one 
dollar and twenty-five cents ($1.25) upon the hundred dollars ($100) 
of the assessed and appraised value of the property subject to taxation 
in such city for the year in which the levy is made, as shown by the 
assessment returned to and on file in the office of the county auditor 
and by his certificate herein mentioned. 

958. Auditor to put taxes on duplicate.— 131. The levies of taxes 
made as provided in the last section shall be certified by the depart- 
ment of finance under its seal, without delay, to the county auditor, 
and such auditor shall thereupon proceed to estimate, as he is now re- 
quired to do in reference to state, county, township, road and other 
taxes, the amount of tax chargeable according to the rate prescribed 
by such levies, to each person who is listed for any taxable property 
or poll in such city upon the assessment and appraisement of proper- 
ty and polls therein made for the year, in which such tax is levied, 
and returned by the assessor of the township in which such city is lo- 
cated, and equalized by the county board of review and state board of 
tax commissioners, he shall enter the amount of the tax, including 
delinquent tax chargeable to each person against the name of such 
person, as it appears upon the tax duplicate of the county for such city 
for the current year, in the column in which are entered the current 
and delinquent state, county, township, road and other taxes with 
which such person is charged. The aggregate of all taxes with which 
such person is chargeable, including state, county, township, road and 
other taxes, shall be carried out and set down opposite the name of 
such person in a column of totals, and in the recapitulation of the du- 
plicate now required by law to be made by him, he shall set down the 
aggregate of all taxes contained in the duplicate for such city, said 
duplicate shall thereupon be delivered to the treasurer of the county 
as now provided by law. 

959. Notice by county treasurer,— 132. The county treasurer 
shall include in the notice now required by law to be given by him of 
the receipt of the tax duplicate for collection a statement of the 
amount of tax charged in such city, for city and school purposes, upon 
each one hundred dollars ($100) valuation of the taxable property, 
and also for such purposes upon each taxable poll, and such notice 
.shall be the only notice required to be given of the fact of such taxes 
being in his hands for collection. 

960. Duty of county treasurer — Delinquency, — 133. It shall be 

CiT. AND To.— 42 



§ 961 CITIES OF MORE THAN TWENTY-THREE THOUSAND. 658 

the duty of the county treasurer to receive and collect all taxes shown 
upon the duplicate of such city, for city and school purposes, the 
same as he is required by law to receive and collect the taxes shown 
thereon for state, county, township, road and other purposes, if one- 
half of the amount of such city and school taxes for the current year 
charged to any person, and the entire amount of delinquent school 
and city taxes, penalty, interest and costs charged to such person and 
unpaid, be paid on or before the third Monday of April, the payment 
of the other half of such taxes for the current year may be postponed 
to the first Monday of November following, but if on or before the 
third Monday of April payment be not made of that portion of the 
above specified amount, the entire amount of unpaid city and school 
taxes charged upon the duplicate to such person shall become due and 
be returned delinquent and collected as such, with like penalty, inter- 
ests and costs as is provided where the first installment of state, 
county, township and road taxes are not paid by the time prescribed. 
If such taxes remain delinquent after the first Monday of November 
following, there shall be an additional penalty of six (6) per centum 
added to all such taxes that become delinquent at the preceding April 
and November settlements, but a penalty of ten (10) per centum only 
shall be added to the current delinquency occurring on the first Mon- 
day of November. After payment by any person of taxes charged 
to him, the treasurer shall give to such person a receipt in the form 
prescribed by law, which shall include all taxes paid by him, the city 
and school, as well as other taxes. Any partial payment of either 
current or delinquent taxes shall be prorated among the different taxes 
charged to the person paying in proportion to the amount of such 
taxes respectively. 

961. Failure to pay installment — Effect. — 134. If either install- 
ment, or any part thereof, of such taxes for such city and school 
purposes remain unpaid after expiration of the time limited for pay- 
ment thereof, the county treasurer shall have the same power and be 
under a like duty to collect the entire amount of such taxes remaining 
unpaid by levy and sale of personal property and by suit as is granted 
to and imposed upon him for the collection of delinquent state, county, 
toYt^nship, road and other taxes. 

962. Settlement by county treasurer. — 135. The county treasurer 
shall at the time of making his annual settlement with the county 
auditor, on the third Monday of April, as now required by law, make 
settlement with said auditor for the amount with which said treasurer 
is to stand charged on account of city and school taxes, in the manner 
prescribed for his settlement of state, county, township, road and 
other taxes, and for all of such city and school taxes appearing upon 
the tax duplicate, and not shown upon such settlement to be uncol- 
lected, said treasurer shall be held liable as having been collected and 
received by him. Immediately upon such settlement being made, the 
auditor shall make out statements in duplicate, showing in one the 
aggregate amounts separately of all current and delinquent taxes, for 



659 EXECUTIVE AND JUDICIAL OFFICERS AND DEPARTMENTS. § 963 

city purposes, including with the delinquent taxes, the penalties and 
interest thereon, which appear upon the tax duplicate for said city, 
the amount of each class of such taxes, penalty and interest that re- 
mains uncollected at the time of such settlement, and the amount of 
each class, including penalty and interest, that has been collected by 
such treasurer ; in the other statement shall be shown, in the same 
manner, the aggregate amounts of current delinquent taxes, including 
penalty and interest, for school purposes, that appear upon the 
duplicate for such city ; the amount thereof that has been collected 
by such treasurer, and the amount thereof that remains uncollected 
at the time of settlement. Said settlements shall be signed and 
sworn to by said treasurer, and certified by the county auditor, 
under the seal of the board of commissioners, to be corrected 
abstracts of the treasurer's settlement on account of such city and 
school taxes. One copy of the first mentioned statement shall be de- 
livered by the county auditor to the department of finance of such 
city, Avho shall thereupon charge the amount shown thereby to have 
been collected to such count}^ treasurer as cash in his hands. 

963. Payment of school taxes.-— 136. The county treasurer, im- 
mediately upon such settlement being made, shall pay over to the 
treasurer of the board of school trustees of such city, the full amount 
for which he is liable as shown by such settlement on account of 
school taxes, interest and penalty collected by him, for which he shall 
take a receipt from such treasurer, which receipt he shall deliver to 
the secretary of said board of school trustees, who shall give him a 
quietus therefor and credit him with the amount thereof, and charge 
such amount to the treasurer of the board. 

%4:, Belinquent list. — 137. The county auditor shall include in 
the delinquent list required by law to be made by him after the an- 
nual settlement with the treasurer on the third Monday of April the 
amount of all city and school taxes shown by such settlement to be 
uncollected, and carry the same out and include it in the total of all 
taxes due from the person liable therefor as shown in said list, and 
such list when delivered to the county treasurer, shall empower him, 
and it shall be his duty, to collect all delinquent city and school taxes 
embraced therein, in the same manner, and with the same penalty 
and interest, as the state, county, township, road and other taxes con- 
tained therein. 

965, Settlement for cleliiiqiiesit taxes. — 138. On the first Monday 
of each year the county treasurer shall make settlement with the 
county auditor for the amount of delinquent city and school taxes, 
penalty and interest shown upon said delinquent list in the same man- 
ner as he is now required by law to make in such settlement for de- 
linquent state, county, township, road and other taxes collected by 
him, and upon such settlement, statements signed, sworn and certi- 
fied to by said treasurer and auditor. In the same manner prescribed 
in section 135 of this act shall be prepared in duplicate, showing in 
one the aggregate amount of city delinquent taxes, penalty and inter- 



§ 966 CITIES OF MORE THAN TWENTY-THREE THOUSAND. 660 

est which had been contained in such delinquent list, the amount 
thereof collected and the amount still remaining uncollected; and in 
the other, the same showings shall be made with reference to delin- 
quent school tax, interest and penalty, a copy of which statements 
shall be transmitted to the department of finance as required with 
reference to the statements mentioned in section 135. 

966. Payment of school deiinquency,— 139. The county treasurer 
shall immediately thereafter pay to the treasurer of the board of school 
trustees of such city the full amount of delinquent school taxes, inter- 
est and penalty, shown by such statement to have been collected, and 
shall take a receipt therefor, which he shall deliver to the board of 
school trustees, who shall give him a quietus therefor, and thereupon 
charge the treasurer of the board with amount shown by such receipt 
to have been received by him. 

967. Delinquent list— Duty of auditor.-— 140. The county auditor, 
in making out the list of lands and lots in such city returned and re- 
maining delinquent for state, county, township, road and other taxes 
which he is required by law to make between the first Monday of No- 
vember and the first day of January in each year, shall enter therein 
against the name of each person remaining delinquent on account of 
state, county, township, road and other taxes for the city and school 
purposes for which said lands and lots are liable, including taxes on 
poll and personalty, and adding interest and a penalty of ten (10) 
per centum thereon, and also the amount of all taxes for city and 
school purposes assessed for the current year, for which said lands or 
lots are liable, including taxes on poll and personalty, which said 
taxes shall be carried out with the taxes for state, county, township, 
road and other purposes, into one total, 

968, Sale of lands and lots.— 141. Payment of such delinquent 
and current city and school taxes, with interest, penalty and costs, 
shall be enforced by sale of the lands and lots liable therefor, or so 
much thereof as may be necessary, which sale shall be made by the 
county treasurer in the same manner, at the same time and place, and 
upon the same notice as is prescribed by law for the sale of lands and 
lots for the payment of delinquent state, county, township, road and 
other taxes, the property to be offered for sale and sold for the pay- 
ment of all taxes of every kind for which the same is liable, with in- 
terest, penalty and costs thereon, as one entire sum, and not separately, 
for said city and school taxes. Nor shall notice of the sale be given 
separately for the city and school taxes, but it shall be stated in the 
notice required to be given of the sale of the lands and lots for state, 
county, township, road and other taxes that the sale thereof will also 
be for the payment of the city and school taxes, which shall be the 
only notice required to be given. 

969, Payment of bids— Enforcement, — 142. Payment of the bid 
upon the sale of any such lands and lots, shall be enforced, so far as 
it relates to city and school taxes, by the same officer, and in the 
same manner, and with the same penalty and costs, as is provided by 



661 EXECUTIVE AND JUDICIAL OFFICERS AND DEPARTMENTS. § 970 

law for the enforcement of the payment of a bid made upon the sale of 
lands and lots for state, county, township, road and other taxes alone. 
The guaranty required by law to be indorsed by the county treasurer 
upon each certificate given by him upon a purchase of lands and lots 
for state, county, township, road and other taxes, shall in every case 
where such sale is made for city and school taxes, also apply to and 
embrace the amount of city and school taxes for which sale was made; 
and the holder of such certificate shall have the same remedy upon 
such guaranty as to the city and school taxes embraced therein that he 
has as to state, county, township, road and other taxes to which the 
same relates. 

970. Provisious of law applicable. —143. All provisions of law in 
reference to the certificate to be issued to a purchaser of lands and lots 
upon sale for state, county, township, road and other taxes; the effect 
of such sale and the rights of the purchaser; redemption therefrom; 
the making of deeds upon failure of redemption, and as to the force 
and effect of such deeds; for the quieting of titles acquired thereunder; 
for transferring to the purchaser the original lien for the taxes for 
which the sale was made, and subsequent taxes paid; and for the en- 
forcement of such lien by judicial proceedings, w^hen the purchaser 
fails to acquire a valid title by virtue of the purchase; and as to the 
interest and penalties to be collected upon redemption from such sales 
before deed is made, or upon judicial proceedings to quiet the title or 
enforce the lien of the purchaser; and all other provisions of law relat- 
ing to levying, assessing, collecting and accounting for state, county, 
township, road and other taxes, shall, so far as the same are applica- 
ble, apply with like force and effect in case of city and school taxes in 
cities of the class referred to in this act. 

971. Salary of coiiiity aiiclitor.™~144. The county auditor, for all 
services required to be performed by him under this act, shall receive 
an annual salary of three hundred dollars ($300) to be paid quarterly 
out of the funds of the city, upon allowance by the common council 
thereof. The county treasurer, for all services required to be per- 
formed by him under this act, shall receive an annual salary not ex- 
ceeding five hundred dollars ($500) to be fixed by an ordinance of 
the council to be paid quarterly out of the funds of the city upon al- 
lowance by the common council thereof. He shall receive no percent- 
age for receiving, collecting or disbursing any of the funds of such 
city, whether derived from taxes, current or delinquent, or from 
special assessments, taxes, licenses, or other source: Provided, That 
the common council may, by ordinance, allow him a certain percent- 
age, to be fixed in the ordinance, for collecting delinquent taxes. 

DEPARTMENT OF HEALTH AND CHARITIES. 

972. Board of health and charities — Appointmeut — Salary — Du- 
ties. — 145. The department of health and charities shall be under 
the control of three (3) commissioners, who shall be practicing phy- 



§ 973 CITIES OF MORE THAN TWENTY-THKEE THOUSAND. 662 

sicians to be appointed by the mayor, as hereinbefore provided. Said 
commissioners shall each receive a salary of one hundred and fifty 
dollars ($150) per year. Said commissioners shall have charge of all 
matters relating to public health and the enforcement of laws in rela- 
tion thereto. Said commissioners shall elect one of their number 
registrar of vital statistics, who shall be secretary and executive offi- 
cer of their board, and shall attend to the proper registration of births, 
marriages and deaths and such other statistical information as the de- 
partment may require. Said registrar of vital statistics shall receive for 
his services the sum of one hundred dollars ($100) in addition to his 
salary as health commissioner. Said health commissioners shall nom- 
imate for appointment by the department of public safety, as special 
sanitary officers, if in their judgment they deem it necessary, skilled 
and competent persons for live-stock and meat inspectors and food in-, 
specters, whose duty it shall be to inspect all live stock, meat and food 
offered for sale for human food in such city, and to attend the public 
markets and carefully watch over the same and prevent the selling or 
offering to sell, for human food, any and all articles unfit for use, and 
said commissioners are hereby authorized to require from the depart- 
ment of public safety special detail of policemen or firemen to execute 
orders of such department of public health whenever needed. Said 
department of public safety shall detail policemen who shall be con- 
stantly subject to the orders of such department of public health. In 
case of disagreement as to the number of sanitary officers required, 
between said two departments, or as to the number or duration of 
service of such details of firemen and policemen, the mayor shall de- 
cide the question. 

973. Preparation of ordinances.— 146. Said health commissioners 
are hereby authorized and directed to prepare ordinances for the pro- 
tection of public health, for securing the proper registration of births, 
marriages and deaths, and such other statistical information as the 
department may require, w^ith penalties for their violation; for the 
removal and burial of the dead, and the destruction or fumigation of 
infected property or premises; for the registration of plumbers and 
the inspection of plumbing and house drainage in all buildings, both 
public and private, erected after the passage of this act, and in all 
buildings, both public and private, erected prior thereto, wherein 
changes in or additions to the plumbing or drainage are to be made; 
for the appointment of an inspector of plumbing and house drainage, 
who shall be a practical plumber, who shall be required to pass an 
examination as to his qualifications by a board of three (3) practical 
plumbers doing business and residing in such city, said board to be 
selected by the health commissioners of such city. Such ordinances 
shall be submitted to the council for passage as other ordinances. 

974. Powers of officers and boards — Mode of exercise — Laws and 
ordinances. — 147. Wherever there is a grant of authority or power, 
conferred by this act upon any officer or board created by the pro- 
visions hereof, and no method is provided herein for the exercise of 



663 EXECUTIVE AND JUDICIAL OFFICERS AND DEPARTMENTS. § 975 

such authority or power and a method for the exercise of such au- 
thority or power is necessary to be provided by law to make such 
grant of authority or power effectual; and a method for the exercise of 
such or similar authority or power is provided by any other law of 
this state in relation to the government of cities generally but not of 
a particular class, then such other law, so far as the same provides a 
method for the exercise of an authority or power herein conferred, 
may be followed as fully as if incorporated in and made part of the 
provisions of this act. And, wherever there is a grant of authority or 
power conferred by this act and no method is provided by this act or 
any other general law as herein referred to, for the exercise of such 
authority or power, the common council may by ordinance provide 
such method. 

975. Laws repealed. — 148. All laws and parts of laws in conflict 
with any of the provisions of this act are hereby repealed on and after 
the first day of July, 1899, in so far as they relate to cities of the 
class referred to in this act and are in conflict with its provisions. 

976. Words and phrases construed, — 149. Wherever the terms 
^'police judge" or ''judge of the police court" are used in this act the 
same shall be construed to mean and refer to the judge of the city court 
of such city; and wherever the term ''police court" is used it shall be 
construed to mean the city court of such city. Wherever the term 
"treasurer" or "city treasurer" is used in this act the same shall be 
construed to mean and refer to the person or officer designated by this 
act to perform the duties of treasurer of said city for the time being. 
Wherever the title "comptroller" is used in this act the same shall be 
construed to mean and refer to the person or officer designated by this 
act to perform the duties of comptroller of such city for the time being. 

977. School laws not repealed.— 150. Nothing contained in this 
act shall be construed to affect or repeal by implication the general 
laws of this state now and heretofore in force in relation to the govern- 
ment and control of the common school system of such city, but such 
laws shall remain and continue to be in force as to such city, except 
where provision is otherwise expressly made by this act. 



CHAPTER 6. 
CITIES AND TOWNS. 



AET. 

1. General provisions. 

2. Annexation — Boundaries. 

3. Taxation. 

4. Water-works. 

5. Sewers. 

6. Cemeteries. 

7. Street improvements. 



ART, 

8. 

9. 
10. 
11. 
12. 
13. 



Public lights. 
Natural gas — License. 
Public parks. 
Pawnbrokers. 
Eailroads, right of way. 
Fire companies. 



14. Boards of health. 



AETICLE 1.— GENERAL PROVISIONS. 



SEC. 

978. 
979. 
980. 
981. 
982. 
983. 
984. 

985. 



987. 
988. 
989. 
990. 
991. 
992. 

993. 
994. 



996. 
997. 



SEC. 

Qualifications tot ofiice. 998. 

Qualifications of voters. 999. 

Precincts — Number of voters. 1000. 

Boundaries of precinct — Change. 1001. 

Town and city elections. 1002. 

Authorizing use of voting machines. 1003. 

Authorizing the purchase of voting 1004. 

machines. 1005. 

Capacity of machines. 1006. 
Existing election laws continued in 

force. 1007. 

Time limit for voting. 1008. 

Duties of election officers. 1009. 

Voting precincts. 1010. 
Care and use of machines. 

Use of machines in city elections. 1011. 

Penalty for tampering with ma- 1012. 

chines. 1013. 

Prisons. 1014. 

Licenses by cities and towns. 1015. 
Ex-Union soldier or sailor — License 

to vend, hawk and peddle. 1016. 
Removal of garbage. 
Local board of health— Secretarv. 



Security for arms. 

Distribution of arms. 

Planting shade trees. 

Issuance of funding bonds. 

Sinking fund and interest. 

Funding bonds. 

Taxes to pay interest and principal. 

Refunding bonds of cities and towns. 

Tax levy to pay interest and princi- 
pal. 

Interest coupons good for taxes. 

Sinking fund — Investment. 

Notices. 

Allowance of claims and issue of 
warrants. 

Claims verified. 

Claim docket kept by clerk. 

Oaths and affirmations by clerk. 

Penalty. 

Act not to apply to cities of more 
than 35,000. 

Payment of unskilled labor— Mini- 
mum wage. 



[R. S. 1852, p. 373. In force June 10, 1852.] 

978. Qualifications for office. — 1. No property qualification shall 
be necessary to render any citizen eligible to hold any office of any 
municipal incorporation in the state. R. S. 1894, § 4191. 

979. Qualifications of voters. — 2. In all municipal elections under 
town or city charters in this state, no other qualifications shall here- 

(664) 



\ 



665 GENERAL PROVISIONS. § 980 

after be required of any voter than such as are made necessary under 
the constitution of the state, except that the voter shall reside in the 
ward or district where he may offer to vote. R. S. 1894, § 4192. 

[Acts 1889, p. 157. In force May 10, 1889.] 

980. Precincts — Number of voters. — 1. That the county commis- 
sioners of each county in this state shall, at their first session after 
the taking effect of this act, divide the townships of their respective 
counties into election precincts, and establish the boundaries of the 
same. Such board of commissioners shall designate at least one place 
of holding elections in each township, and every township in which 
only one place of holding elections is designated shall constitute a 
precinct. There shall be but one voting place in a precinct. Each 
precinct shall contain, as nearly as practicable, two hundred electors, 
based on the number of votes cast at the last election for presidential 
electors; but no precinct shall contain more than two hundred and 
fifty electors. If at any election hereafter two hundred and fifty or 
more votes shall be cast at any voting place, it shall be the duty of 
the inspector in such precinct to repo^-t the same to the board of county 
commissioners, who shall, at their next regular meeting, divide such 
precinct as equally as possible so that the new precincts formed thereof 
shall each contain two hundred electors, as nearly as practicable; but 
no precinct shall contain more than two hundred and fifty electors, 
and shall report such division to the clerk of the circuit court of such 
county, and to the governor of the state, together with the estimated 
number of votes in each of the new precincts. If such board shall 
fail to act as herein directed, any qualified voter of the county may 
apply for a writ of mandamus to compel a performance of this duty. 
R. S. 1894, § 6198. 

981. Boundaries of precinct— Change.— 2. The board of commis- 
sioners of any county may change the boundaries of any precinct 
within such county, or divide any precinct into two or more precincts, 
or consolidate two or more precincts into one, or change any place of 
holding elections whenever public convenience or the public good 
may require it: Provided, That no such change, division or consoli- 
dation shall be made after the June term of such commissioners' court 
next preceding an election: And, provided further. That no such 
change, division or consolidation shall be valid without giving due 
notice, at least one month before any election, by one publication in 
two newspapers published in said county, representing the two polit- 
ical parties which cast the highest number of votes in the state at the 
last general election, and by posters put up in four of the most public 
places in each precinct: And, provided, further, That no precinct 
shall be enlarged so as to contain more than two hundred and fifty 
electors. [As amended, Acts 1891, p. 124. In force June 3, 1S91.] 
R. S. 1894, § 6199. 

Changfe of boundaries.— If a change of boundaries of a townsliii) after the June term 



§ 982 CITIES AND TOWNS. 666 

requires a change of precincts to be made, the commissioners may make the same. 
Duncan v. Shenk, 109 Ind. 26. 

982. Town and city elections. — 65. Where any town or city shall 
hold an election at any time other than a time of a general election, 
such election shall be held in conformity with the provisions of this 
act, except the duties herein required of the county clerk shall be per- 
formed by the town or city clerk; the duties herein required of the 
board of county commissioners shall be performed by the town trustees 
or city council; the duties of the county sheriff shall be performed by 
the town marshal or chief of police, and the rights of nomination of 
election officers by political parties shall be exercised by the chairman 
of the town or city committees of such parties, if any such there be. 
Town and city officers are hereby required to perform the various du- 
ties herein prescribed for the county officers in whose stead they act, 
subject to the same penalties and provisions herein prescribed as to 
such county officers.. The town and city boards of election commis- 
sioners shall provide the necessary stamps and ink pads for such elec- 
tions, and shall cause as many classes of ballots to be printed as there 
are wards or districts entitled to separate officers, ballots of each class 
having printed uniformly on the back of the same, the name or num- 
ber of the ward or district in which it is to be used, and containing 
the names of all lawfully nominated candidates for all officers that the 
voters of such ward or district are entitled to vote for at such election. 
The commissioners of county and trustees of townships in which such 
towns or cities are situated shall furnish what is necessary for use in 
such elections of the election furniture in their custody: Provided, 
that such town or city shall pay the expense of moving such furniture 
to and from the polling places, and also for any damage to, or loss of 
such furniture. The boards of town or city election commissioners 
shall perform all the duties in providing and preparing polling places 
that are required of county commissioners in county elections, sub- 
ject to the same provisions and penalties. [As amended. Acts 1891, 
p. 134. In force June 3, 1891.] R. S. 1894, § 6261. 

See ante, §61, et seq.; also general election law, R. S. 1894, ch. 60 (§§6190-6339), 
Burns' Supp. 1897, ch. 60 (§6198, et seq.), and Acts 1899, pp. 60, 365, 381, 539, 540. 

Municipal elections— Contests— Eig'ht of appeal.— Section 6323, R. S. 1894, provid- 
ing that all contests for municipal offices shall be tried in the manner provided by law 
for the contest of county and township offices, is construed T\dth section 644, R. S. 1894, 
providing generally for appeals from the circuit court to the supreme court, and an ap- 
peal will lie from the circuit court from contested municipal elections. Weakley v. 
Wolf, 148 Ind. 208. 

[Acts 1899, p. 365. In force March 2, 1899.] 

983. Authorizing use of yoting machines. — 1. That at all state, 
county and city, town and township elections, hereafter held in the 
state of Indiana, ballots or votes may be cast, registered, recorded and 
counted by means of voting machines, as hereinafter provided. 

984. Authorizing the purchase of voting machines. — 2. Hereafter 



667 GENERAL PROVISIONS. § 985 

the board of county commissioners of any county, or the common 
council of any city, or the board of trustees of any incorporated town 
in the state of Indiana may, by a majority vote, authorize, purchase 
and order the use of voting machines in any one or more voting pre- 
cincts within said county, city or town, until otherwise ordered by 
said board of county commissioners, common council or board of trus- 
tees : Provided, That, before such purchase or ordering of any voting 
machine they shall thoroughly test the same by every means within 
their knowledge, and shall satisfy themselves that said machines are 
thoroughly reliable and correct in their operation, easily understood 
and operated, and can not be fraudulently manipulated, and that the 
secrecy of the ballot shall be unquestionably maintained. 

985. Capacity of macMnes. — 3. Said voting machines shall have 
the capacity to contain the tickets of seven political parties, with the 
names of candidates thereon, and said machines shall be constructed 
of such materials and in such manner as that the votes cast by means 
thereof shall be registered ; and so as that each may readily and un- 
derstandingly and within the period of not more than three minutes, 
cast his vote for all the candidates of his choice, and the secrecy of 
his vote may be secured, and said machines shall be provided with all 
reasonable and practicable safeguards for the prevention of frauds in 
the casting, registering, recording and counting of the votes cast. 

986. Existing election laws continued in force. — 4. The present 
law on the subject of chutes, booths and rooms for the holding of 
elections is continued in force, except there shall be only one machine 
booth provided, instead of three, as now required. Before the voting 
begins, the inspector and judges shall examine the machine to see 
that the counters or registers are properly set, and the said machine 
shall be locked with two locks of different kinds and combinations, so 
that the key of one will not unlock the other, and one key thereto 
shall be retained by the inspector and the other key delivered to the 
judge, of politics opposite to that of the inspector, and the same shall 
not be again opened until the polls are closed and the board is ready 
to immediately ascertain the number of votes registered or counted for 
the candidates. 

987. Time limit for voting. — 5. No person shall remain in the 
voting machine booth longer than three minutes, and if he shall re- 
fuse to leave the said machine after the lapse of three minutes, he 
shall be removed by the inspector. 

988. Duties of election officers. — 6. When the polls are closed, 
the inspector and judges holding the keys to the locks of said machine 
shall unlock the same and ascertain the total number of votes regis- 
tered and recorded for each candidate and direct the poll clerks to en- 
ter upon [the] poll books the number of votes registered for each can- 
didate. After the total vote for each candidate has been ascertained, 
and before leaving the room or voting place the inspector shall make 
and sign written statements of election, required by the general elec- 
tion laws now in force, except that such statements of the canvass need 



§ 989 CITIES AND TOWNS. 668 

not contain any ballots, official or defective, when the said voting ma- 
chines are used. The written statements so made, after having been 
so signed by the board of election, shall be read in the hearing of all 
persons present, and ample opportunity given to compare the results 
so certified with the machine record exposed to public view. Ail pro- 
visions of the election law not inconsistent with this section shall 
apply with full force to all counties, townships, precincts, towns and 
cities adopting the use of voting machines. 

989. Toting precincts. — 7. The board of county commissioners of 
the state of Indiana, wherein voting machines are to be used, may at 
any regular session, term or meeting of said board, subdivide each 
township into voting precincts, each of such voting precincts to con- 
tain not to exceed four hundred voters as nearly as may be ascertained 
from the votes of the last preceding general election, and it shall be 
the duty of the county auditor in each county where such subdivision 
or redistricting has been made to publish notice of the same as now 
provided for and required under existing laws. 

990. Care and use of machine s.— 8. Said county board of election 
commissioners shall make rules and regulations for the care, custody 
and use of said voting machines, but the arrangement of the room in 
which the election is being conducted, the duties of the election board 
and election officers before, during and after the election and canvass- 
ing the votes thereat, shall not be changed except as is necessary in 
consequence of substituting the voting machine in lieu of ballot boxes, 
booths, etc., and this act shall not be construed as repealing any part 
of the election laws now in force except as may be entirely inconsistent 
with the use of the voting machine. It being the purpose of this act 
to be supplementary to and in aid of all existing legislation on the 
subject thereof. 

991. Use of machines in city elections. — 9. In case there shall be 
any city election held in any county where the county commissioners 
have so provided voting machines, the said machines shall be deliv- 
ered by the clerk of the circuit court to the mayor and city clerk of 
such city, who shall receipt in writing therefor, and such machines 
may be used in such city election under the conditions and according 
to the provisions of this act in so far as the same are applicable: Pro- 
vided, That all such machines so delivered to such mayor and city 
clerk shall be returned to such clerk of the circuit court within five 
days after such election has been held. And if, during any such 
election, any of such machines shall be lost, broken or in anj wise 
injured, the municipal authorities of such city shall forthwith deliver 
in the place thereof a new machine in all respects similar to that so 
lost, broken or injured. 

993. Penalty for tampering with machines. — 10. Any unauthor- 
ized person found in possession of any such voting machines shall be 
deemed guilty of a misdemeanor and fined in any sum not less than 
twenty-five nor more than one hundred dollars, and imprisonment in 
the county jail not less than ten nor more than thirty days, and any 



6G9 GENERAL PROVISIONS. § 993 

person tampering or attempting to tamper with, disarrange, deface or 
impair in any manner whatsoever, or destroy any such voting ma- 
chine, or the registration or record made by the same, shall be deemed 
guilty of a felony, and on conviction thereof shall be imprisoned in 
the penitentiary at hard labor for not less than three nor more than 
ten years. 

[1861 S., p. 21. In force September 7, 1861.] 

993. Pi'isons. — 1. Any incorporated tov/n or city shall have power 
to erect a prison within the limits of such town or city; and it shall 
be lawful to imprison therein persons convicted of offenses against 
the laws of such incorporation, or for offenses against the penal 
laws of this state, and also, persons charged with offenses punish- 
able by indictment or presentment, temporarily, until they can be 
conveniently removed to the county jails; so far as the same shall be 
applicable, the law governing county jails shall be the law of such 
town or city prison, and all cases where the county jails are con- 
venient, they may be used for town purposes until a town or city 
prison shall be erected. R. S. 1894, § 4194. 

Expense in county Jail — Liability. — A city is liable for the expense of receiving, 
boarding and discharging a prisoner convicted of a breach of a provision of its charter 
or by-laws, and confined in the county jail. Board, etc., v. Chissom, 7 Ind. 688. 

994. Licenses toy cities and towns. — 6. No city or incorporated 
town shall charge any person who may obtain a license under the 
provisions of this act, more than the following sums for license to sell 
within their corporate limits: cities may charge two hundred and 
fifty dollars, and incorporated towns, one hundred and fifty dollars in 
addition to the sum provided for hereinbefore. [As amended, Acts 
1889, p. 395. In force May 10, 1889.] R. S. 1894, § 7282. 

See ante, § 124, clause 13, and § 210; also post, § 1200, clause 7. 

For full text of laws regulating sale of intoxicating liquors, see E. S. 1894, §§ 7276- 
7288; General Statutes 1895; Burns' Supp. 1897, ch. 87 (§ 7276, et seq.). 

The above act is not invalid as violating § 21, art. 4, of the state constitution. Bush 
V. City of Indianapolis, 120 Ind. 476; Moore v. City of Indianapolis, 120 Ind. 483. 

[Acts 1899, p. 59. In force February 17, 1899.] 

995. Ex-UmioM soldier or sailor — License to vend, liaivk and ped- 
dle. — 1 That any ex-Union soldier or sailor of the United States 
who served honorably in the military or marine service of the United 
States during the war of the rebellion, or any soldier or sailor of the 
Spanish-American war, and who holds an honorable discharge from 
such service issued by the proper authorities, shall be entitled to a li- 
cense to vend, hawk and peddle goods, wares, fruits and merchandise 
in any county, city or town within this state without the payment of 
any fee therefor. Upon the presentation of his certificate and papers 
of discharge, properly executed, to the auditor of any county in this 
state, and proving his identity as the person named in his said certifi- 



§ 996 CITIES AND TOWNS. 670 

cate of honorable discharge, said auditor shall issue to such ex- soldier 
or sailor a license to vend, hawk and peddle goods, wares, fruits and 
merchandise within said county, and in all cities and towns therein 
situate, which license shall be free, and no fee shall be charged to the 
holder of such license by such auditor, nor by the authorities of any 
city or town in such county, nor by any other officer, but such license 
shall be full and complete authority to vend, hawk and peddle as 
aforesaid, without the payment of any sum of money, any municipal 
ordinance or by-law to the contrary notwithstanding. 

[Acts 1875, p. 28. In force March 9, 1875.] 

996. RemoYal of garbage, etc. — 1. The common councils of the 
cities and the trustees of the incorporated towns of this state are em- 
powered and authorized to pass by-laws to secure the removal of slops, 
garbage, the carcasses of dead animals, and other waste material from 
their corporate limits, and to appoint and contract ior such removal, 
and provide that the persons appointed, or contracted with, shall have 
the exclusive right to remove the same, and to provide such penalties 
for the violation of by-laws, in accordance w4th the general laws for 
the incorporation of cities and towns, now in force, or w^hich may 
hereafter be adopted. R. S. 1894, § 4195. 

Grarbag'e ordmance. — An ordinance prohibiting owners or tenants of premises from 
hauhng a way garbage from their premises , requiring them to put such garbage into recepta- 
cles convenient for removal by a public contractor, requiring such owners or tenants to 
pay a certain specified amount per pound, but not prohibiting the destruction of such 
garbage on the premises, is valid, and authorized by the provisions of a statute empower- 
ing the common council to enact ordinances "to prevent the deposit of any unwhole- 
some substances, either on private or public property, to compel its removal to desig- 
nated points, and to require slops, garbage, ashes, waste or other material to be removed 
to designated points, or to require occupants of premises to place them conveniently 
for removal." Walker v. Jameson, 140 Ind. 591. 

997. Local board of liealtii — Secretary. — 8. The trustees of each 
town, the mayor and common council of each incorporated city, ex- 
cept where a regularly constituted board of health, by ordinance of 
such city exists, or may hereafter be created, and the board of com- 
missioners of each county shall constitute a board of health ex officio, 
for each town, city, and county respectively of the state, whose duty 
it shall be to protect the public health by the removal of causes of dis- 
eases, when known, and in all cases to take prompt action to arrest 
the spread of contagious diseases, to abate and remove nuisances, 
dangerous to public health, and perform such other duties, as may 
from time to time be required of them by the state board of health, 
pertaining to the health of the people. They shall annually at their 
first meeting in December, elect a secretary, who shall be the execu- 
tive officer of the board who shall serve as such health officer for one 
year, from the first of January next ensuing, his election. He shall 
receive such compensation from the town, city, or county treasury 
respectively as the board electing him may determine. The records 



671 GENERAL PROVISIONS. § 998 

of the county board of health shall be kept at the county seat. R. S, 
1894, § 6718. 
See R. S. 1894, §§ 6711-6725. 

[Acts 1861 S., p. 20. In force May 10, 1861.] 

998. Security for arms. — 1. Whenever the mayor and common 
council of any incorporated city or the trustees of any town in the 
state of Indiana shall obtain from the state authorities arms of any 
kind, to be used by the military organizations of such cities or towns; 
or whenever any volunteer military organization shall obtain arms 
from the state, — it shall be lawful for the mayor and common council 
of such city or the trustees of such town to cause to be executed and 
delivered to the governor of the state of Indiana, a bond, conditioned, 
according to law, for the safety and delivery of such arms. R. S. 
1894, § 4196. 

999. Distribution of arms. — 2. The governor may, in his discre- 
tion, distribute public arms, as herein provided, to any incorporated 
town or city, notwithstanding any other law in conflict herewith. 
R. S. 1894, § 4197. 

[Acts 1865 S., p. 104. In force December 20, 1865.] 

1000. Planting shade trees. — 1. The incorporated cities and in- 
corporated towns of this state are hereby invested with full power to 
compel the owners of lots and parts of lots bordering on any street, 
alley, public square or common of said cities and towns, to plant and 
maintain shade trees along said streets, alleys, public square or com- 
mon, under the same regulations and in the same manner in which 
the grading and paving of streets and sidewalks are now enforced. 
When such owners shall petition the common council for the planting 
and maintaining of any particular kind of tree, said council shall, in 
making the order for the same, designate the kind of tree named m 
said petition ; but when the kind'of tree shall not be designated in said 
petition, or where shade trees are required to be planted and main- 
tained on order of the council without petition, then the council, in 
making the proper order, shall designate therein the kind of tree to 
be planted and maintained. The common council are hereby invested 
with full power to pass by-laws and ordinances for the protection and 
preservation of trees established in pursuance of this act, and to des- 
ignate the distances at which shade trees shall be established, and the 
kind of boxing or other protection for the same, the cost of which 
shall be assessed and collected in the same manner in which the cost 
of establishing and maintaining shade trees is assessed and collected. 
R. S. 1894, §4198. 

[Acts 1881, p. 12. In force March 7, 1881.] 

1001. Issuance of funding bonds. — 1. Any city or town in this 
state, having a voting population of less than sixteen thousand, as 
shown by the votes cast for governor at the last preceding election, 



§ 1002 CITIES AND TOWNS. 672 

and having an indebtedness evidenced by bonds, notes, or other obli- 
gations heretofore issued or negotiated by such city or town, may for 
the purpose of funding such indebtedness, or any part thereof, and 
reducing the rate of interest thereon, and canceling so much thereof 
as may be due or shall hereafter become due, upon the vote of two- 
thirds of the members of the common council of such city or the board 
of trustees of such town, issue its bonds, with interest-coupons at- 
tached, for an amount not exceeding, in the aggregate, the whole 
amount of the indebtedness of such city or town, which bonds may be 
of any denomination not less than fifty dollars nor more than one 
thousand dollars, and shall be payable at any place, after two years, 
in equal annual installments, not exceeding in all the period of fifteen 
years, and shall bear any rate of interest not exceeding six per cent, 
per annum, payable semi-annually; and such city or town may negotiate 
such bonds at any market or place at not less than par. R. S 1894, 
§ 4199. 

See ccjite, §§ 39, 143, 144 and notes. 

May issue funding' bonds— Constitutional limitation. — The constitutional provis- 
ion limiting the power of cities to create indebtedness, does not prohibit cities from is- 
suing bonds to fund the indebtedness and interest thereon that existed at the time of 
the adoption of such provision. Powell v. City of Madison, 107 Ind. 106, 114; City of 
Logansport v. Dykeman, 116 Ind. 15, 22; City of Laporte v. Gamewell, etc.. Co., 146 
Ind. 466, 474; ^tna, etc., Co. v. Lyon county, 44 Fed. Eep. 329 ; Coffin v. City of Indi- 
anapohs, 59 Fed. Eep. 221; Myers v. City of Jeffersonville, 145 Ind. 431; Hainer 
Munic. Securities, § 297. 

The only effect w^hich the adoption of article 13 of the state constitution, § 220, R. S. 
1894, had upon §§ 4199, 4200, R. S. 1894, which provide for the funding of the indebted- 
ness of cities and towns, was to limit their application to debts contracted prior to 
March 14, 1881, and to such as have been since incurred, not in excess of the two per 
centum limit upon the value of their taxable property. Powell v. City of Madison, 107 
Ind. 106, 114. 

1002. Sinking fund and interest.— 2. The common council of such 
city or the board of trustees of such town shall add to the tax dupli- 
cate thereof annually a levy sufficient to pay the yearly interest on 
said bonds and to provide a sinking fund for the liquidation of the 
principal thereof as they become due, which sinking fund, together 
with all interest, increase or profit thereon, shall be applied to the pay- 
ment of said bonds, and to no other purpose: Provided, however, That 
in all cases where bonds have heretofore or' may be hereafter issued 
for the purposes contemplated by said act there shall remain any sur- 
plus after the payment of all the principal and interest of said bonds, 
said surplus may, by a vote of two-thirds of the members of the com- 
mon council of such city or the board of trustees of such town, be 
paid over to any other fund belonging to or controlled by such city or 
town as such common council or board of trustees may by such vote 
direct, and such surplus may then be used in the same manner as if 
originally collected for the fund to which it may be paid over as afore- 
said. [As amended. Acts 1893, p. 373. In force March 6, 1893.1 
R. S. 1894, § 4200. 



673 GENERAL PROVISIONS. § 1003 

[Acts 1893, p. 136. In force February 24, 1898. J 

1003, Funding bonds. — 1. That cities and towns in this state, be- 
ing or becoming indebted to an amount beyond the ability of the cur- 
rent levies of taxes to meet are hereby authorized for the purpose of 
funding such indebtedness, or any part thereof, to issue its bonds, 
with interest coupons attached, for an amount not exceeding in the 
aggregate the whole amount of the indebtedness of such city or town, 
deducting current levies, and to sell the same with which to raise 
money to pay off such indebtedness, which bonds may be in denomi- 
nations not less than fifty dollars nor more than one thousand dollars, 
and shall be payable at any piece in equal installments, not exceeding 
in all, the period of fifteen years, and shall bear any rate of interest 
not exceeding six per cent, per annum, payable semi-annually, and 
may be negotiated at any market or place at not less than par. The 
amount of such bonds in no event to exceed the constitutional limit 
of indebtedness. R. S. 1894, § 4201. 

See ante, §§ 39, 143, 144 and notes. 

1004, Taxes to pay interest and principal. — 2. The common coun- 
cil of such city or the board of trustees of such town shall add to the 
tax duplicate thereof annually, a levy sufficient to pay the yearly in- 
terest on said bonds, and to provide a fund for the liquidation of the 
principal thereof as they become due, and it shall be unlawful for the 
common council or the board of trustees to apply the funds arising 
from such levy to any other purpose. R. S. 1894, § 4202. 

[Acts 1895, p. 87. In force March 2, 1895.] 

1005, Refunding bonds of cities and towns, — 1. That any city or 
town, in this state, being indebted, or hereafter becoming indebted, 
which indebtedness is evidenced by bonds, notes or other obligations 
heretofore or hereafter issued, or negotiated by such city or town, may 
for the purpose of funding or refunding such indebtedness, or any 
part thereof, reducing the rate of interest thereon, extending the time 
of payment thereof, and cancelling so much thereof, as may be due, 
or which shall hereafter become due, upon the vote of two-thirds of 
the members of the common council of such city, or board of trustees 
of such town, issue its bonds with interest coupons attached, for an 
amount not exceeding in the aggregate, the whole amount of the in- 
debtedness of such city or town, which bonds may be of any denomi- 
nation^ not less than fifty dollars, nor more than one thousand dol- 
lars, and shall be payable at any place named therein, and at a time 
not later than twenty-five years from the date thereof, and shall bear 
any rate of interest, not exceeding six per centum per annum, paya- 
ble annually or semi-annually, and such city or town may negotiate 
such bonds at any market or place, at not less than par. Burns' 
Supp 1897, § 4202a. 

See ante, §§ 39, 143, 144, 1001, et seq. and notes. 
CiT. AND To.— 43 



§ 1006 CITIES AND TOWNS. 674 

1006. Tax leyy to pay interest and principal. — 2. The common 
council of sucli city, or board of trustees of such town, shall add to 
the tax duplicate thereof, annually a levy, sufficient to pay the yearly 
interest on said bonds, and may provide a sinking fund for the liqui- 
dation of the principal thereof, when it shall become due, which sink- 
ing fund, together with the interest, increase or profit thereon, shall 
be applied to the payment of said bonds, and to no other purpose: 
Provided, This act shall not authorize the issuance of bonds for the 
purpose of funding, or [nor] to levy any tax to pay any indebtedness 
of such city or town which has been held to be illegal by any court of 
competent jurisdiction, or shall this act be construed to have the effect 
of liquidating [legalizing] any illegal debt of, or any bonds illegally 
issued by such city or town. Burns' Supp. 1897, § 42025. 

Sinking- fund.— See ante, §§ 146, 201, 203, 1002, etseq., and notes. 

1007. Interest coupons good for taxes, — 3. The interest coupons 
attached to any bonds issued by authority of this act, may by order of 
the common council, or board of trustees, when due, be made receiva- 
ble for taxes levied or assessed in any such city or town, or other mu- 
nicipal corporation for the payment of such interest, and when so or- 
dered and so expressed upon the face of the coupons, the}' shall be 
receivable in payment for any taxes thereof [thereafter] levied or as- 
sessed in the city, town or other municipal corporation issuing the 
same for the payment of said interest. Burns' Supp. 1897, § 4202c. 

The above act re-enacts but enlarges the provisions of act approved Februaiy 15, 
1887 (R. S. 1894, §§4204-4206), and said former act, though not expressly repealed, is 
omitted. 

[Acts 1883, p. 101. In force June 5, 1883.] 

1008. Sinking fund — Investment. — 1. That the municipal corpora- 
tions of this state shall have the power and authority to temporarily 
invest their sinking fund, or any other specific fund held for any pur- 
poses whatever, in the bonds of the government of the United States, 
the state of Indiana, or any of the counties of Indiana, during such 
time as the said sinking funds can not be advantageously used in tak- 
ing up or paying off the city bonds or indebtedness, or said other spe- 
cific fund can not be or is not used for the purpose for which it is 
intended. R. S. 1894, § 4203. 

[Acts 1855, p. 130. In force August 17, 1855.] 

1009. Notices. — 5. All notices now required by law to be given 

by the trustees of any incorporated town or city, may hereafter be 
given by written notices, to be posted up in three of the most public 
places within such incorporated town or city. R. S. 1894, § 4207. 

[Acts 1899, p. 80. In force April 27, 1899.] 

1010. Allowance of claims and issue of wan^ants. — 1. That it shall 
be unlawful for the board of trustees of any incorporated town, or the 



675 ANNEXATION BOUNDARIES. § 1011 

common council of any incorporated city in the state, or any member 
thereof, to make any allowance or to allow any claim against said 
town or city, or to order the issue of any town or city warrant or order 
for the payment of money, except at a regular or special session of 
said board of trustees or common council, and it shall be unlawful for 
any clerk of any city or town to draw or issue any town or city order 
or warrant to any person, except that the same has been ordered and 
allowed as in this act provided. 

1011, Claims yerified.— 2. No claim shall be allowed by said board 
of trustees of an incorporated tov^^n, or common council of an incor- 
porated city, unless such claim, setting forth the particular items and 
amounts claimed, and duly verified by claimant or by some person 
having knowledge of the facts on his behalf, shall have been filed in 
the office of th.e clerk of said town or city, by said clerk placed on the 
claim docket more than five days before the holdings of such session 
of the board of trustees or common council. 

1012, Claim (locket kept by clerk«— 3. The clerk of said town or 
city, shall at the expense of said town or city, procure a suitable book 
to be used as a claim docket. He shall when a claim is filed as herein 
provided enter the same on said docket, stating the name of the claim- 
ant, the amount claimed, and in general terms for what claimed and 
the date of the filing thereof. And when a claim is acted upon, said 
clerk shall briefly upon said docket state the action of the board of 
trustees, or city council. Said docket shall at all times be open to 
the inspection of any and all citizens. 

1013, Oaths and affirmations by clerk.-— 4. The clerks of incor- 
porated cities and towns are hereby authorized to administer all oaths 
and affirmations by this act required, for which they shall charge no 
fee. 

lOM. Penalty. ~~5: Any clerk of an incorporated town, or clerk of 
an incorporated city, or any member of a board of trustees of an in- 
corporated town, or any member of a city council, who shall violate 
any of the provisions of this act, shall, upon conviction thereof, be 
fined not less than fifty dollars for such offense. 

1015, Act not to apply to cities of more than 85,000.— ~6. The pro- 
visions of this act shall not apply to cities having a population of 
35,000 or more according to the census of 1890. 

[Actf3 1899, p. 515. In force March 6, 1899.] 

1016. Payment of unskilled labor — Minimum wage. — 1. That from 
and after the passage of this act, unskilled labor employed upon any 
public work of the state, counties, cities and towns shall receive not 
less than fifteen cents an hour for said labor. 

ARTICLE 2.— ANNEXATION— BOUNDARIES. 

SEC. SEC. 

1017. Union of cities and towns. 1020. Election. 

1018. Terms and conditions. 1021. Tickets. 

1019. Agreement made public. 1022. Report of election — Annexation. 



§ 1017 CITIES AND TOWNS. . 676 

SEC. SEC. 

1023. Name. 1037. Disannexing territory. 

1024. Name. 1038. Vacation of lots, streets and alleys. 

1025. Effect of union. 1039. Disannexing territory. 

1026. Property and debts. 1040. Survey and plat. 

1027. Annexing territory in adjoining 1041. Survey and plat. 

counties. 1042. To be kept by the city clerk. 

1028. Survey and plat. 1043. Law applies to towns. 

1029. Notice of petition. 1044. Additions to cities and towns— Plats. 

1030. Action of trustees or council. 1045. Penalty. 

1031. Effect of annexation. 1046. Plats— Submission for approval— Re- 

1032. Jurisdiction— Taxes. cording— Penalty. 

1033. Appeal from county board. 1047. Legalized plats. 

1034. Auditor's duty. 1048. Plats of additions to cities and towns 

1035. Trial. legalized. 

1036. Effect of appeal. 

[Acts 1857, p. 22. In force February 16, 1857.] 

1017« Union of cities and towns.— 1. Where an incorporated town 
and an incorporated city adjoin each other, they may be consolidated 
or united, or the town annexed to the city, provided a majority of the 
qualified voters of the town and a majority of the qualified voters of 
the city shall vote in favor thereof, at elections to be held as herein- 
after provided. R. S. 1894, § 4208. 

See ante, § 253, et sea., and post, § 1280, et seq. 

Union of city and town— Election— Tote required.— This act, as to the number of 
votes requisite for a consolidation, only contemplates a majority of the persons voting 
upon the proposition for union, and the fact that the day fixed for the special election 
upon the question of union, is a day upon which the general municipal election is re- 
quired by the law to be held, and that the votes cast in favor of such proposition do not 
constitute a majority of the votes cast for municipal offices, does not affect the result. 
City of South Bend v. Lewis, 138 Ind. 512. 

1018. Terms and conditions. — 2. The common council of the city 
and the president and trustees of the town shall first agree on the 
terms and conditions upon which such union, consolidation, or an- 
nexation shall take place, and also upon a day when an election shall 
be held for the people of such town and city to vote upon the ques- 
tion of union, consolidation, or annexation, upon the terms specified 
in such agreement. R. S. 1894, § 4209. 

1019. Agreement made public. — 3. Such agreement shall be made 
public at least three weeks before the time agreed upon for such elec- 
tion, by publishing the same at least three times in each newspaper 
printed and published in the county where such to¥/n and city are 
situated, and by posting printed hand-bills, containing said agree- 
ment, in three of the most public places in each ward of such town 
and city. R. S. 1894, § 4210. 

1020. Election. — 4. The election above provided for shall be held 
at the time agreed on, as above provided, and at the places where other 
city and town elections are usually held in such city and town respec- 



677 ANNEXATION — BOUNDARIES. § 1021 

tively, and be governed by the laws and regulations governing other 
city and town elections in such ci.ty and town respectively. R. S. 1894, 
§ 4211. 

1021. Tickets. — 5. Those who vote in favor of union or annexa- 
tion according to the agreement aforesaid shall have on their tickets 
the word "union," and those who vote against it shall have on their 
tickets the words ''no union," or equivalent words. R. S. 1894, 
§ 4212. 

1022. Report of election— Annexation.— 6. The inspectors and 
judges of the election shall report to the common council and presi- 
dent and trustees, respectively, the result of such election. And the 
report of the inspectors and judges of the town election shall be en- 
tered on the records of the president and trustees, and a certified copy 
thereof delivered to the clerk of the city; and the report of the inspec- 
tors and judges of the city election shall be entered on the records of 
the common council, and a certified copy thereof delivered to the clerk 
of the town. And if a majority of the votes given in the town as well 
as a majority of the votes given in the city are in favor of union or 
annexation, then the president and trustees of the common council 
shall meet at the council chamber of the city council, and, by resolu- 
tion, declare that the town is annexed to the city or the two united, as 
the case may be, according to the agreement aforesaid. And such 
resolution shall be entered on the records of the city council, and such 
record, and certified copies thereof, shall be conclusive evidence of 
such union or annexation, and a copy of such resolution shall also be 
recorded in the recorder's office of the county where such city is sit- 
uated, and copies of such record shall be good evidence in all courts. 
R. S. 1894, § 4213. 

1023. Name. — 7. If the agreement aforesaid should be to annex 
the town to the city, and the election and resolution aforesaid shall 
be in favor thereof, then the town shall be deemed a part of the city 
to all intents and purposes, and the city shall continue its corporate 
name and existence. R. S. 1894, § 4214. 

1021:. Name. — 8. If the agreement aforesaid be to unite or con- 
solidate, then the agreement aforesaid shall contain also a stipulation 
as to the name of the consolidated or united town and city. R. S. 
1894, § 4215. 

1025. Effect of union. — 9. When a town and city shall be consoli- 
dated or united as aforesaid, they shall constitute one city, by the 
corporate name agreed on as aforesaid. R. S. 1894, § 4216. 

1026, Property and debts. — 10. In case of annexation, as afore- 
said, the city shall be liable for all debts, contracts and liabilities of 
the town, and shall be entitled to all the rights, credits, moneys, 
effects and property of the tow^n; and may sue and be sued in relation 
thereto in the name of the city. And in case of a union or consolida- 
tion, the new city shall be liable for all debts, contracts and liabilities 
of the town and city consolidated, and be entitled to all the rights, 
credits, moneys, effects and property of the town and city consolidated 



§ 1027 CITIES AND TOWNS, 678 

or united, and may sue and be sued in relation thereto in the name 
agreed on and adopted for the consolidated city as aforesaid. And in 
case of either annexation or consolidation, all actions pending may be 
prosecuted to final judgment and execution, and all judgments here- 
tofore rendered may be executed and enforced without any change of 
the parties and without any change of the name of plaintiff or defend- 
ant. R. S. 1894, § 4217. 

[Acts 1893, p. 42. In force February 18, 1893.] 

1027. Annexing territory in adjoining counties, — 1. That wherever 
a majority of the resident land or lot owners in a county adjacent to 
the county in which a town or city is situated desires to be annexed 
to said town or city in said adjoining county for municipal purposes, 
they may do so by filing a petition before the board of trustees of said 
town or the common council of said city, praying to be annexed to and 
made a part of said town or city, for municipal purposes only. R. S. 
1894, § 4218. 

1028. Survey and piat, — 2. It shall be the duty of said land or lot 
owners, prior to making application for annexation, to survey, or 
cause to be surveyed, platted and numbered by a competent engineer, 
the tract or tracts of lands or lots to be annexed, and have the same 
recorded in the recorder's ofiice of the county in which said lands or 
lots are situated, and file said plat with the board of trustees of said 
town or common council of said city at the time of filing said petition. 
R. S. 1894, § 4219. 

1029. Notice of petition. — 3. Said petitioner or petitioners shall 
give notice ten (10) days prior to the filing of said petition, by post- 
ing in three (3) public places, on or near the lands or lots to be an- 
nexed, of his or their intention to file said petition with the said board 
of trustees or common council. R. S. 1894, § 4220. 

1030. Action of trustees or council. — 4. Upon the presentation of 
such petition, the board of trustees or common council of such town 
or city may, by ordinance, declare said platted lands or lots a part of 
said town or city for municipal purposes only. R. S. 1894, §'4221. 

1031. Effect of annexation. — 5. All persons owning property or 
residing in said amended territory shall be subject to all the ordi- 
nances and by-laws of said town or city. R. S. 1894, § 4222. 

1032. Jurisdiction — Taxes. — 6. The board of trustees, common 
council and all other officers of said town or city shall have full and 
complete jurisdiction, and are hereby vested with full authority to col- 
lect taxes for municipal purposes, make arrests and enforce all the or- 
dinances that may now be in force in said town or city, and any and 
all ordinances that shall hereafter be passed for the government of 
said town or city, in said annexed territory, in as full a manner as is 
guaranteed by the statutes of Indiana providing for the government of 
cities and towns. R. S. 1894, § 4223. 



679 ANNEXATION BOUNDARIES. § 1033 

[Acts 1879 S., p. 94. In force May 31, 1879.] 

1033. Appeal from county board. — 1. In proceedings before the 
board of county commissioners for the annexation of territory to cities 
and towns against the will of the owner, the petitioner and the owner 
of any portion of the territory proposed to be annexed may appeal 
to the circuit court from the final decision of the board by filing 
within thirty days, with the auditor, a bond or undertaking for the 
due prosecution of the appeal and payment of all costs that may be 
adjudged against the appellant, with sureties, to be approved by the 
board or the auditor. But no appeal shall be dismissed for want of a 
sufhcient bond or undertaking, if one shall be filed, under the direc- 
tion of the court, at any time beforethe trial. R. S. 1894, § 4224. 

Appeal— Trial de novo.— Upon an appeal from the board of county commissioners to 
the circuit court the proceedings are tried de novo. Wilcox v. City of Tipton, 143 Ind. 241, 
246; Chandler v. City of Kokomo, 137 Ind. 295; Paul v. Town of Walkerton, 150 Ind. 
565. 

Amended petition on appeal, excluding* certain territory included in orig'inal pe- 
tition. — Upon appeal from an order of annexation by the commissioners' court, the pe- 
titioners may be permitted to amend the petitions so as to exclude certain territory in- 
cluded in the original petition. Wilcox v. City of Tipton, 143 Ind. 241. 

Sufficiency of reasons not reviewable on appeal— Discretion of county commis- 
sioners. — ^The sufficiency of the reasons stated in a petition for the annexation of ter- 
ritory to a town can not be considered upon appeal, at least in the absence of a plain 
abuse of the discretion necessarily vested in the county board of commissioners, by the 
omission of the statute to prescribe what reasons shall be set forth. Windfall, etc., Co. 
V. Emery, 142 Ind. 456. 

Appeal— Injunction— Notice — Jurisdiction. — An answer in an action to enjoin the 
annexation of plaintiff's territory to defendant city need not allege notice to plaintiff 
of an appeal from an order of annexation by the commissioners' court to the circuit 
court, where the jurisdiction of the latter court was not questioned by the complaint. 
Wilcox V. City of Tipton, 143 Ind. 241. 

Annexation of territory— Legislative character— Judicial examination. — The 
legislative character of the function of annexation of territory to a city does not pre- 
clude judicial examination and decision on questions as to preliminary steps and truth 
and sufficiency of the petition for annexation. The action of the board of county com- 
miasioners upon a petition filed for such annexation is judicial in its character, and the 
legislature may provide for an appeal from such proceedings. Forsythe v. City of Ham- 
mond, 142 Ind. 505; see Forsythe v. City of Hammond, 68 Fed. Eep. 774; Forsythe 
V. City of Hammond, 166 U. S. 506; Paul v. Town of Walkerton, 150 Ind. 565. 

The power to create, enlarge, and regulate municipal corporations is a legislative 
power, but general laws authorizing common councils of cities, and the boards of trus- 
tees of towns, by resolution, without notice to any one, to annex contiguous territory 
which has been platted into lots, and the plat recorded, are upheld. Paul v. Town of 
Walkerton, 150 Ind. 565. 

General laws providing the conditions upon which contiguous territory can be an- 
nexed, and the mode of procedure, and vesting the power in boards of commissioners 
and courts to hear and determine the same, and order or refuse such annexation, are 
also upheld. Paul v. Town of Walkerton, 150 Ind. 565. 

1034:. Auditor's duty. — 2. Within twenty days after filing the 
appeal-bond or undertaking, the auditor shall deliver it, with all the 



§ 1035 CITIES AND TOWNS. 680 

other papers in the cause and a complete transcript of the proceedings 
of the board, to the clerk of the circuit court, who shall docket it with 
the other causes pending therein. R. S. 1894, § 4225. 

1035, Trial. — 3. The appeal shall stand for trial, when taken dur- 
ing the session of the board, at the first term after the papers shall 
have been filed ten days, and, when taken in vacation, at the first 
term after summons shall have been served upon the appellee ten days 
before the first day of such term. The appeal shall be tried and de- 
termined as an original cause. R. S. 1894, § 4226. 

1036. Effect of appeal, — 4. All further proceedings in the annex- 
ation of territory shall be suspended until the final disposition of the 
appeal. The court may make a final determination of the proceeding 
and compel its execution, or may send its decision to the board, with 
direction how to proceed, and require compliance. R. S. 1894, § 4227. 

[Acts 1881 S., p. 91. In force September 19, 1881.] 

1037. Disannexing territory. — 1. Cities and towns of this state 
desiring to disannex territory, or to reduce their city or town limits, 
shall have power to do so in the manner following: The common 
council of cities and boards of trustees of towns desiring the relief 
under this act shall cause a petition to be filed with the board of com- 
missioners of the county in vv^hich such city or town is situated, re- 
citing the fact of the desire of such city or town to disannex certain 
territory and surrender jurisdiction over and control of the same, par- 
ticularly describing the same and, in such petition, formally surrender- 
ing all claims to control of and jurisdiction over such land. Notice 
of the filing of such petition and the substance thereof shall be pub- 
lished, for three weeks successively, in some newspaper printed and 
published in such county, previous to the first day of the meeting of 
such board of commissioners. If the facts in such petition be found 
to be true, said board shall cause an order to be made upon their 
record, declaring such property disannexed from such town or city 
from the date of such order, and that the same shall be relieved from 
the control of such city or town, and no longer be subject to such 
jurisdiction; which said order, when so made, shall be published for 
three weeks successively in some weekly newspaper printed and pub- 
lished in said county: Provided, That nothing herein contained shall 
release the territory so disannexed and surrendered from any taxes or 
other liens existing against such city or town at the time of, or prior 
to, the order of such county board disannexing such territory. R. S. 
1894, § 4228. 

See post, § 1039. 

[Acts 1893, p. 44. In force February 18, 1893.] 

1038, Vacation of lots, streets and alleys, — 1. That the owner or 
owners of real estate which may or has been disannexed from any city 
or town of this state, according to the provisions of section 3247 of 
the revised statutes of 1881, may have the lots, streets and alleys 



681 ANNEXATION BOUNDARIES. § 1039 

vacated on petitioning the board of commissioners of the county in 
which said cit}^ or town is situated reciting the fact of the desire of 
such owner or owners to have the lots, streets and alleys of such dis- 
annexed territory vacated. Notice of the filing of such petition and 
the substance thereof, shall be published for one week in some news- 
paper printed and published in such county, twenty days previous to 
the first day of the meeting of such board of commissioners. If the 
facts in such petition are found to be true, and there is no valid ob- 
jection thereto by the owner or owners of real estate affected thereby, 
said board shall cause an order to be made upon their records, declar- 
ing the lots, streets and alleys in said disannexed territory vacated, 
and that such territory thereafter be described as unplatted land. 
R. S. 1894, § 4229. 

[Acts 1877, p. 22. In force Jaly 2, 1877.] 

1039, Disannexiug territory, — 1. The common council of any 
city or the board of trustees of any incorporated town of this state is 
hereby authorized and impowered, at any regular meeting of the same, 
on the application of any owner of any suburban lot or tract of land 
not laid out in lots, by a two-thirds vote of such common council or 
board of trustees, so to modify the boundaries of such city or incor- 
porated town, as to exclude therefrom such lots or tracts of land, upon 
such terms as such common council or board of trustees may impose. 
R. S. 1894, § 4230. 

See ante, § 1037. 

Disannexation— Jurisdiction. — Where land-owners petitioned under this section 
the board of trustees of a town, asking said board to modify the boundaries of the town 
so as to exclude therefrom certain tracts of land, and the board of trustees refuse to 
act upon said petitions, a circuit court has not thereafter jurisdiction of an action com- 
menced in such court by said land-ov/ners to disannex said tracts of land from said 
town. Woolverton v. Town of Albany, Ind. Sup. Ct., Jan. 5, 1899. 

[Acts 1872 S., p. 14. In force December 27, 1872.] 

1040, Survey and plat. — 1. Any city incorporated under the au- 
thority of this state that has no sufficient survey and plat thereof, 
may, by a resolution of the common council thereof, adopted by a 
vote of ayes and nays (providing tw^o-thirds of all the members of 
such council shall vote therefor), order and direct that a survey and 
plat of such city shall be made by competent persons, to be chosen by 
such council. And when any such survey and plat shall have been 
made, the common council of such city may adopt such survey and 
plat, by resolution, by a vote of ayes and nays, providing three-fourths 
of all the members of such common council shall vote therefor. And 
when a certified copy of the resolution ordering such survey and 
adopting the same, with the vote thereon, and the names of the mem- 
bers voting for and against the same, signed by the mayor and clerk, 
and attested by the seal of such city, shall have been recorded, to- 
gether with the survey and plat, in the office of the recorder of the 



§ 1041 CITIES AND TOWNS. 682 

county in which such city may be located, the said survey and plat 
shall be deemed and taken as adopted by such city for all purposes 
whatsoever; and the original, or the record thereof, or any duly certi- 
fied copy thereof, shall be admissible in evidence in any judicial pro- 
ceeding in all courts of justice, in all cases and for all purposes. R. 
S. 1894, § 4231. 
See ante, §§ 380, 381 ; also. Towns, post, §1157, et seq. and notes. 

1041, Survey and plat. — 2. Whenever any survey and plat of any 
city shall have heretofore been made, and such city may desire to 
adopt the same, it shall be competent for such city to do so by res- 
olution of the common council thereof by a vote of ayes and nays, 
providing three-fourths of all the members of such common council 
shall vote therefor. And when such resolution adopting the said sur- 
vey and plat, with the names of the members voting for and against 
the same, duly authenticated as provided in the preceding section, 
shall have been recorded, with the said survey and plat, in the office 
of the recorder of deeds of the county in which such city is located, the 
same shall be deemed and taken as adopted by such city for all purposes 
whatsoever, and the original plat and survey, or the record thereof or 
any copy thereof, duly authenticated by the mayor and clerk, under 
their hands and attested by the seal of such city, shall be admissible 
in evidence in any judicial proceeding in all courts of justice, in all 
cases and for all purposes. R. S. 1894, § 4232. 

1042, To be kept by the city clerk, — 3. The original survey and 
plat, when recorded by the recorder, shall be deposited in the office of 
the clerk of such city for safe-keeping. R. y. 1894, § 4233. 

1043, Law applies to towns. — 4. The provisions of this act shall 
extend to all towns incorporated under the authority of this state. In 
such incorporated towns as have a board of trustees instead of a com- 
mon council, the duties required by this act to be performed by the 
mayor shall be performed by the president of the board of trustees, 
and the duties required to be performed by the common council shall 
be done and performed by the board of trustees thereof. R. S. 1894, 
§ 4234. 

[Acts 1885, p. 150. In force July 18, 1885.] 

1044, Additions to cities and towns — Plats. — 1. That hereafter 
whenever any lands are platted for the purpose of being attached to 
any city or incorporated town as an addition thereto, a plat of such 
addition shall be submitted to the common council of such city or 
board of trustees of such town before the same is placed on record, and 
such council or board of trustees may require that the streets and 
alleys of such addition shall be made to correspond in width, and be 
co-terminous with the streets and alleys of that part of the city or 
town which it adjoins. R. S. 1894, § 4235. 

1045, Penalty. — 2. Any person violating the provisions of section 



6S3 ANNEXATION BOUNDARIES. § 1046 

one (1) of this act shall be fined in any sum not to exceed the sum of 
twenty-five dollars. R. S. 1894, § 4236. 

[Acts 1891, p. 368. In force June 3, 1891.] 

1046, Plats — Submission for approval — Recording — Penalty, — 1. 

That whenever any property owner in any incorporated city or town 
of this state shall plat any unplatted realty lying within the corporate 
limits of said city or town into in-lots or out-lots, or shall plat any 
out-lot within any city or town into in-lots, he shall before recording 
the said plat, submit the same to the common council of such city or 
the board of trustees of such towni for approval. And such common 
council or board of trustees, shall, by special committee thereof, and 
without expense to such property owner, carefully examine the said 
plat and the territory platted, and shall have authority to approve or 
disapprove the same. And the county recorder is hereby prohibited 
from recording any such city or town plat without the same be accom- 
panied wdth the certificate of such town or city clerk, attested by the 
corporate seal certifying that the plat has been approved by the com- 
mon council or board of trustees, as the case may be. For any viola- 
tion of this act the recorder shall upon conviction be fined in any sum 
not more than three dollars. R. S. 1894, § 4237. 

[Acts 1881, p. 56. In force March 3, 1881.] 

1047, Legalized plats, — 2. The acknowledgments of all plats of 
towms and cities, and of all additions thereto, heretofore taken and 
certified by any officer provided for in section 3374, are hereby legal- 
ized; and the recording of such plats and additions as have heretofore 
been acknowledged before and certified by any officer provided for in 
said section is hereby declared to be valid and effectual in law to all 
intents and purposes. R. S. 1894, § 4238. 

Plat-books— Judicial notice of— Public record.— Judicial notice will be taken that 
books known as plat-hooks are kept by the county recorders in the various counties of 
the state, in which are recorded the plats of the towns and cities and the additions 
thereof, and that such books are kept as public records. Certified copies of such records 
are competent evidence. Miller v. City of Indianapolis, 123 Ind, 196. 

[Acts 1895, p. 382. In force March 15, 1895.] 

1048, Plats of additions to cities and towns legalized. — 1. That 
all plats of additions to cities and towns and of subdivisions of sec- 
tions which have heretofore been recorded in the recorder's office of 
any county without the owner or owners thereof having signed the 
same or without having the execution thereof acknowledged and certi- 
fied as required by law, but under which lands and lots have been 
sold or conveyed, or where such additions or subdivisions have been 
entered upon the tax duplicate for the purposes of taxation in accord- 
ance with the descriptions contained in such plats, are hereby legal- 
ized and declared valid to all intents and purposes from the date of 
the recording of such plats, to the same extent as if the same had been 



§ 1049 



CITIES AND TOWNS. 



684 



duly signed and the execution thereof had been duly acknowledged 
and certified before they were recorded. Burns' Supp. 1897, § 4238a. 



ARTICLE 3. -TAXATION. 



SEC. 

1049. Bank stock. 

1050. Auditor's duty. 

1051. Auditor's statement. 

1052. Assessment. 

1053. Collection of taxes. 

1054. Tax, a lien. 

1055. Bank stock, how valued. 

1056. Assessment. 



SEC. 

1057. 
1058. 
1059. 

1060. 



State tax-law to govern — Proviso. 
Non-resident's personal property. 
County treasurer — Surplus gravel road 

or railroad aid tax. 
Levy and collection of taxes in cities 

and towns of less than seventy 

thousand. 



[Acts 1873, p. 214. In force March 4, 1873.] 

1049, Bank stock, — 1. The shares of capital stock owned or held 
by any person or body corporate in any bank or banking association 
chartered or organized under the laws of this state, or chartered or or- 
ganized under the lav/s of the United States, shall be taxed for mu- 
nicipal purposes by the corporate authorities of the incorporated 
towns and cities of this state in which any such bank or banking as- 
sociation may have its banking house or place of business; and such 
shares of stock shall be taxed by the corporate authorities of the town 
or city in which such bank or banking association may be located, at 
the same rate as is or may be lawfully assessed by the corporate au- 
thorities of such town or city on other taxable property. R. S. 1894, 
§ 4239. 

See ante, §216, and general law. Taxation, R. S. 1894, ch. 108 (§ 8408, et seq.), Bums' 
Supp. 1897, ch. 108 (§ 8411, et seq.), and Acts 1899, pp. 422, 430, 431, 491, 516. 

General laws. — Some of the provisions of the statutes compiled under this title, and 
decisions cited thereunder, may not now be applicable. The general laws of the state 
upon the subject of taxation control municipal taxation so far as applicable. See post, 
§ 1057. 

Deduction of debts -^^ational bank stock— Discrimination.— Where the tax law of 
a state allows tax-payers to deduct their debts from the assessed value of a class of 
credits which constitute a material portion of the moneyed capital of the state in the 
hands of its citizens, but denies to owners of national bank stock the right to deduct 
their debts from the assessed value of such stock, it is such a discrimination, in view of 
the provisions of §5219, R. S. United States, relating to national banks, as renders the 
said law to that extent inoperative. Wasson v. First National Bank, 107 Ind. 206. 

Rig'ht of OAvner to deduct indebtedness.— The owner of national bank stock is enti- 
tled to deduct from its value, if he have no other credits from which the deduction can 
be made, the amount of the bona fide debts owing by him. City of Indianapolis v. 
Yajen, 111 Ind. 240; Wasson v. First National Bank, 107 Ind. 206. 

Refusal to allow deduction— Refunding- by tlie city.— If the assessor refuses to allow 
such indebtedness to be deducted, demand being made by the owmer of the stock for 
such deduction, both of the assessor and the treasurer, the tax-payer is entitled to have 
the excess of taxes collected refunded, whether paid voluntarily or not, and without 
appearing before the board of equalization and there attempting to have the assessment 
corrected. City of Indianapolis v. Vajen, 111 Ind. 240. 

National bank stock.— The shares of stock of a national bank may be taxed for mu- 



685 TAXATION. § 1050 

nicipal purposes under this section. The validity of such tax is not impaired by the 
fact that the money paid for such stock may have been taxed for municipal purposes, 
to the same person, as money on hand. City of Richmond v. Scott, 48 Ind. 568. 

AVhen the stock of banks organized under state laws is exempt from taxation, the 
stock of national banks can not be taxed. Wright v. Stilz, 27 Ind. 338; Root v. Erdel- 
meyer, 37 Ind. 225; Craft v. Tuttle, 27 Ind. 332. 

A tax on the capital stock of national banks for school purposes, or for a donation by 
a township to aid in building a railroad, is not a tax levied for municipal purposes. 
Root V. Erdelmeyer, 37 Ind. 225. 

Same. — That the capital of a national bank is invested in United States bonds does 
not affect the right of the state to tax the shares under the act of congress. A tax upon 
the shares of a bank is not a tax upon the property or capital of the bank. Wright v. 
Stilz, 27 Ind. 338. 

Assessment in name of owner. — Corporation stocks, including bank stock, as other 
personal property, are taxable to the individual owners where they reside, unless the 
statute provide otherwise. Conwell, etc., v. Town of Connersville, 15 Ind. 150; City of 
Madison v. Whitney, 21 Ind. 261; Whitney v. City of Madison, 23 Ind. 331; Seward v. 
City of Rising Sun, 79 Ind. 351 ; City of Evansville v. Hall, 14 Ind. 27. 

Assessment in name of bank — Effect. — Where bank stock is assessed and a valua- 
tion put upon it by the proper officer, and an entry made of the assessment upon the 
tax duj)licate, the fact that the assessment was made in the name of the bank, instead 
of the individual stockholders, will not invalidate the lien or relieve the respective 
stockholders from the payment of the tax for which it is liable. Small v. City of 
Lawrenceburg, 128 Ind. 231. 

State banks. — Under the act of March 11, 1861, it is competent for cities organized 
under the general municipal law of the state to assess and collect taxes upon stock in 
any of the free banks of the state located in such cities, whether owned by persons re- 
siding in such cities or elsewhere. DePauw v. City of New Albany, 22 Ind. 204. 

[Acts 1881 S., p. 696. In force April 15, 1881.] 

1050. Auditor's duty, — 2. It shall be the duty of the auditor of 
every county in this state in which there is an incorporated town or 
city having withiii its corporate limits any bank or banking associa- 
tion contemplated by the preceding section, on or before the first day 
of May in each and every year, to furnish to the mayor or other prin- 
cipal officer of such town or city, on the demand of such mayor or 
other principal officer, a certified copy, under his hand and seal of his 
office, of the sworn statement in writing which may have been deliv- 
ered to him by the president or cashier of any such bank or banking- 
association in pursuance of the provisions of the seventy-seventh sec- 
tion of an act entitled "an act concerning taxation," approved 
March 29, 1881; which cop}^, so to be furnished by such auditor, 
shall be a copy of the sworn statement made and delivered, for the 
current year, to such auditor by such president or cashier, under the 
provisions of said section. R. S. 1894, § 4240.' 

The act of March 29, 1881, referred to in the above section, was repealed by the ai^t of 
1891 on the subject of taxation. (See E. S. 1894, § 8677.) Section 8471, R. S. 1894, 
which is virtually a re-enactment of the seventy-seventh section of the repealed act, 
should instead be construed in connection with section 4240. 



§ 1051 CITIES AND TOWNS. 686 

1051. Auditor's statement. — 3. If no such sv/orn statement as 
contemplated by the foregoing section shall have been made and de- 
livered to such auditor, then it shall be his duty to make and certify, 
under his hand and seal of his office a full and true statement of all 
the information which he may have obtained, in relation to such bank 
or banking association, its stockholders, and the number and value of 
shares of stock held or owned by them respectively, by or under the 
proceedings prescribed by section seventy-eight of an act entitled 
''an act concerning taxation," approved March 29, 1881. R. S. 1894, 
§ 4241. 

Section 8472, R. S. 1894, should be construed in connection Vv^ith section 4241, for rea- 
sons similar to those given in the preceding note. 

[Acts 1873, p. 214. In force March 4, 1873.] 

1052. Assessment. — 4. On receiving the certified copy of the 
sworn statement mentioned in the second section of this act, or 
the certified statement mentioned in the preceding section, such 
mayor or other principal officer of such town or city shall file the 
same in the office of the clerk of such tov/n or city; and the assessor or 
assessors, or other proper officer of such town or city, shall, from the 
information thus obtained, proceed to enter in the assessment-roll and 
tax duplicate of such town or city, for the current year, the names of 
the stockholders of such bank or banking association, and the number 
of shares and value of the stock held or owned by each stockholder 
respectively, and shall assess thereon to the owner or holder thereof 
the proper amount of corporation or municipal taxes according to the 
rate that may at the time be chargeable on other personal property 
subject to taxation by such town or city; and if any such stockholder 
shall be assessed on said duplicate for either real or personal property, 
other than such stock, the amount and value of his said stock shall be 
added to his assessment as personal property. R. S. 1894, § 4242. 

1053. Collection of taxes. — 5. The taxes assessed under this act 
shall be paid by the owners or holders of such stock, respectively, in 
the same manner as upon other personal property. And all laws and 
ordinances in force in such town or city in relation to the collection 
of taxes, and all penalties provided for the non-payment of the same, 
shall apply to the taxes assessed under the provisions of this act; but 
nothing herein contained shall be construed to prevent the president, 
cashier or other proper officer of any such bank or banking associa- 
tion from paying such taxes, and charging the amount so paid against 
the owner or holder of such stock, but such taxes may be so paid and 
charged, and the amount thereof may be deducted from any dividends 
on such stock which have or may be declared thereon. And on no- 
tice given by the proper collecting officer of such town or city, that 
any such taxes have not been paid when due, the same shall be paid, 
by the president, cashier or other proper officer of such bank or bank- 
ing association out of anv dividends due or to become due on such 
stock. R. S. 1894, § 4243. 



687 TAXATION. § 1054 

1054. Tax, a lien. — 6. Taxes assessed upon any share or shares 
of bank stock under the provisions of this act shall be and remain a 
lien against such stock until the payment of such tax; which lien 
shall attach on the first day of April of each year for which the as- 
sessment is made; and every transfer of such stock shall be subject to 
such lien. R. S. 1894, § 4244. 

1055. Bank stock, Iiow valued, — 7. In making the assessment 
and ascertaining the value of any shares of bank stock under the pro- 
visions of this act, there shall be deducted, from the gross cash value 
of such shares, the proper proportionate part of the value of any real 
estate held or owned by any such bank or banking association in this 
state, and taxed under the laws thereof, in which any part of the 
capital stock of such bank or banking association may be invested; 
and in making such deduction, the valuation of such real estate for 
taxation shall be the criterion. R. S. 1894, § 4245. 

Agricultural lands— Statute repealed.— Section 3261, R. S. 1881, Acts 1881, Spec. 
Sess., p. 698, regulating the taxation of unplatted lands in cities and towns, was repealed 
by the act of 1891. Acts 1891, p. 398. Said section was construed prior to its repeal as 
hereinafter stated. 

Under said repealed section, unplatted agricultural lands containing five (5) acres or 
more, lying within the limits of a city or incorporated town, were not taxable by the city 
or town for general city or town purposes at a higher aggregate percentage than the 
aggregate percentage of the tax levied in the civil township for general township pur- 
poses ; but such lands were subject to all special assessments which affected them in com- 
mon with other property of the city or town. Leeper v. City of South Bend, 106 Ind. 
375; Taberv. Grafmiller, 109 Ind. 206; Dickerson v. Franklin, 112 Ind. 178; City of 
South Bend v. Cushing, 123 Ind. 290. 

For cases construing the similar statutes. Acts 1877, Spec. Sess., p. 74, Acts 1879, 
p. 94, and Acts 1852 (1 G. & H., p. 610), also repealed, see Stilz v. City of IndianapoHs, 
81 Ind. 582; Thomas v. Tov/n of Butler, 139 Ind. 245; City of South Bend v. Univer- 
sity, 69 Ind. 344; Conkhn v. Town of Cambridge City, 58 Ind. 130; Blain v. Bailey, 
25 Ind. 165 ; Hamilton v. City of Ft. Wayne, 40 Ind. 491. 

Recovery of taxes illeg-ally assessed under above statutes.— See Fleming v. City of 
Indianapolis, 6 App. 80; Leonard v. City of Indianapolis, 9 App. 262. 

[Acts 1879, p. 15. In force March 10, 1879.] 

1056. Assessment, — 1. The office of assessor in cities may be, and 
in incorporated towns in this state shall be, abolished, and the assess- 
ment of personal and real property, as made and returned by the town- 
ship assessors to the county auditor, as is now provided by law in 
cities, may, and in incorporated towns shall, constitute the assessment 
for taxation for city and town purposes, in like manner as for county 
and state taxes. And the city and town clerks shall have access to the 
assessor's books in the county auditor's ofhce, and they shall trans- 
cribe, therefrom, on their tax duplicates, an accurate list of the tax- 
able property assessed in each city and town, as it appears to have 
been equalized by the county board of equalization, and thereon com- 
pute the taxes levied by the city and town authorities. R. S. 1S94, 
§ 4246. 

By § 8672, R. S. 1894, the office of city assessor is abolished. 
See ante, § 216. 



§ 1057 CITIES AND TOWNS. 688 

[Acts 1881 S., p. 697. In force September 19, 1881.] 

1057. State tax-law to goyern — Proviso. — 2. Hereafter all general 
laws of the state for the uniform assessment and collection of taxes, 
and matters connected therewith or growing out of the same, shall 
apply to all incorporated cities and towns not having special charters, 
so far as the same shall be applicable: Provided, That all city taxes 
not paid on or before the third Monday of April in each year shall 
then become delinquent: Provided, further, That nothing herein con- 
tained shall be held or construed to prevent cities from exercising their 
discretion as to making assessments by city assessors instead of by 
county commissioners [township assessors] . R. S. 1894, § 4247. 



See, ante, § 216, and for general tax-law, see R. S. 1894, ch. 108 (R. S. 1894, § 
et seq.), Burns' Supp. 1897, ch. 108 (§8411, etseq.), and Acis 1899, pp. 422, 430, 431,491, 
616. 

Taxes — When paj-able.— By § 8570, Burns' Supp. 1897, taxes are made payable on 
or before the first Monday hi May, and on or before the first Monday in November. 

Private sale by marshal. — This section does not authorize town marshals to sell 
lands at private sale for taxes. Stevens v. Williams, 70 Ind. 536. 

Private sale— Void— Recovery of purchase-money.— The doctrine of caveat emptor 
applies to fullest extent to tax sales. Upon private sale by town marshal of land for 
taxes, purchaser can not recover the purchase-money from the town. Worley v. Town 
of Cicero, 110 Ind. 208. 

Fees of city treasurer, — This section did not have the effect to change the fees or 
compensation of city treasurers for selling property for delinquent taxes. Board, etc., 
V. Wasson, 74 Ind. 133. 

Interest and penalty. — Under the general tax law of 1872, which was made applicable 
to cities and towns, purchasers of property at tax sales made by cities and towns, are 
entitled to the same rate of interest and penalty as purchasers at sales made by county 
officers for delinquent taxes. Barton v. McWhinney, 85 Ind. 481 ; Schissel v. Dickson, 
129 Ind. 139. 

City taxes paid by purchaser at county sale.— Under the general tax law of 1872, 
made applicable to cities and towns, subsequent city taxes, paid by a purchaser at a 
sale for state and county taxes to protect his lien, may, in an action by the purchaser 
to quiet title, be decreed a lien on the real estate as part of the original claim for the 
purchase price. Millikan v. Ham, 104 Ind. 498; Schissel v. Dickson, 129 Ind. 139. 

[Acts 1881 S., p. 696. In force April 15, 1881.] 

1058. Non-resident's personal property. — 3. All personal property, 
notes, bonds, or other evidences of debt, which are or may be in the 
hands of any resident of any town or city as guardian of persons not 
residing therein, or as executor or administrator of the estate of a per- 
son who did not reside therein, and in which such guardian, execu- 
tor or administrator has no beneficial interest, shall not be subject to 
taxation by such town or city for municipal purposes. R. S. 1894, 
§ 4248. 

[Acts 1899, p. 117. In force February 24, 1899.] 

1059, County treasurer — Surplus gravel road or railroad aid tax, — 

1. That whenever any county treasurer has in his hands, as such of- 
ficer any unexpended balance of any fund collected from the tax pay- 
ers of any township, city or town, by special levy for the purpose of 



689 WATER-WORKS. § 1060 

purchasing gravel roads, or assisting in the construction of railroads, 
such treasurer is hereby authorized and directed to pay over such un- 
expended balance to the trustee of such township, or the trustees of 
such city or town, to be applied by such trustee to the township fund, 
and trustees of city or town to their general funds. 

[Acts 1885, p. 199. In force April 11, 1885.] 

1060, Levy and collection of taxes in cities and towns of less than 
seventy thousand, — 1. That tlie board of trustees of any incorporated 
town in this state, and the common council of any city in this state 
containing a population of less than seventy thousand, as showm by 
the last census of the United States, in which the office of city assessor 
has been previously abolished, may, by a provision contained in the 
ordinance or resolution fixing the tax levy for any year, provide that 
the taxes so levied shall be entered by the auditor of the proper county 
upon his duplicate, and collected by the treasurer of such county as 
other taxes for state and county purposes are collected, instead of being 
collected by the officers of such town or city. A certified copy of such 
ordinance or resolution shall be by the clerk of such town or city, 
filed with the auditor of the county on or before the first Monday in 
June of each year; and said auditor shall assess said taxes against all 
the property and polls within the corporate limits of such town or city 
subject to taxation and enter the same upon his tax duplicate; and the 
treasurer of such county shall collect such municipal taxes upon such 
duplicate as other taxes thereon are collected, and pay the same over 
when collected to the proper officer of such town or city. When town 
or city taxes are collected by county officers under this act, the same 
may be paid in installments on the third Monday in April and on the 
first Monday in November in like manner as similar taxes for state, 
county and township purposes are payable, and shall become delin- 
quent in like manner and subject to the same penalties upon non-pay- 
ment as other taxes. And all provisions of the law concerning the 
collection of state, county and township taxes by county officers, shall 
apply to the collection of town and city taxes by county officers under 
the provisions of this act. R. S. 1894, § 4249. 

See ante, § 97. 

ARTICLE 4.— WATER- WORKS. 

Bond — May issue. 

Taxation for extensions, payment 

of bonds, mortgage, etc. 
Control of. 
Trustees abolished in certain cities 

and towns. 
Control of water-works by city or 

town. 
1074. Duties and pay of trustees. 



SEC. 




SEC. 


1061. 


May issue water- works bonds— Vote. 


1069. 


1062. 


Location and condemnation. 


1070. 


1063. 


Assessment and report. 




1064. 


Tender of damages. 


1071. 


1065. 


Appeal . 


1072. 


1066. 


Trustees of water-works. 




1067. 


Purchase of water-works — Valua- 
tion, 


1073. 


1068. 


Purchase subject to mortgage. 
CiT. AND To.— 44 


1074. 



§ 1061 CITIES AND TOWNS. 690 



SEC. SEC. 



1075. 


By-laws and rules. 


1083. 


Attachments regulated. 


1076. 


Water rents. 


1084. 


Advertising. 


1077. 


Application of fund. 


1085. 


Bonds. 


1078. 


Keports. 


1086. 


Tax to pay loans. 


1079. 


Funds, how kept. 


1087. 


Lien of tax. 


1080. 


Contracts. 


1088. 


Preventing pollution. 


1081. 


Investigating committee. 


1089. 


Bonds to pay for stock in water-works 


1082. 


Water free for public uses. 




companies. 




[Acts 1879 S., p. 


88. In force March 25, 1879.] 



1061. May issue water-works bonds — Yote. — 1. The common 
council of any city or board of trustees of any incorporated tov/n hav- 
ing a population of less than forty-five thousand, which shall, by 
ordinance or resolution, decide to erect water-works, or to make ex- 
tensions or improvements where works have heretofore been con- 
structed, are hereby authorized, for the special purpose of furnishing 
the inhabitants of such city or town with pure and wholesome water 
and for fire protection, to issue bonds of such, city or town, in de- 
nominations not less than fifty nor more than one thousand dollars, 
and payable at any place that may be designated in the bonds, the 
principal in not less than five years nor more than twenty years after 
the date of such bonds, and the interest annually or semi-annually; 
and such council or trustees may, from time to time, negotiate and 
sell as many of such bonds as may be necessary for such purpose, in 
any place and for the best price that can be obtained therefor in cash: 
Provided, That such bonds shall not be sold at a price less than ninety- 
four cents on the dollar: Provided, That the common council of any 
city or town trustee of any incorporated town, contemplatiug building 
water-works under this act, shall, before actually embarking therein, 
submit the question to the qualified voters thereof, at a special or gen- 
eral election; and voters desiring water-works may vote, "For water- 
works," or, if opposed, "Against water-works." Such election may 
be ordered upon a petition of one hundred freeholders and resident 
tax-payers of such city or incorporated town; and in no case shall the 
common council of any city or town trustee of any incorporated town 
erect water-works except upon a majority of all the votes cast at such 
election upon the said question of water-works, as provided for in this 
act. Such bonds shall be issued under the provisions of the present 
law regulating the issue and sale of bonds, so far as the same can be 
made applicable: Provided, however. That the provisions of said act 
that the entire money borrowed by a city shall not at any time exceed 
tv\'0 per cent, of the taxable property of such city shall not apply to 
this act: Provided, further, That notice of such election, and submis- 
sion of said question of water-works thereat, shall be published for 
three weeks successively before the day of such election, in some news- 
paper printed and published in such city or town, and of general cir- 



I 



691 WATEE-WORKS. § 1062 

culation therein; which said notice shall be signed by the clerk of 
such city or town. R. S. 1894, § 4250. 

See a7ite, § 124, clauses 26 and 43, and § 138; post, § 1089. 

For water-works companies, powers, etc., see post, § 1377. 

Statute not repealed— Contract.— This act did not in terms, or by implication, re- 
peal the twenty-sixth clause of the general act for the incorporation of cities. Contract 
with water company not idfra vires and void. City of Vincennes v. Callender, 86 Ind. 
484. 

Power to borrow money— Bonds.— Under Acts 1871 and 1873, where a city negoti- 
ated her bonds to raise means to construct Avater-works, and the city treasurer misap- 
plied a part of the funds so realized, leaving debts unpaid on account of such works, it 
was competent for the city council to issue and sell other bonds to make up such de- 
ficiency, and it might provide for paying ten per cent, interest on such bonds. Daily 
V. City of Columbus, 49 Ind. 169; State v. City of Columbus, 63 Ind. 155. 

The act of 1871 legalized bonds issued theretofore for the construction of water-works, 
and authorized further issue and sale of bonds to complete construction of water-works. 
State v. Hauser, 63 Ind. 155. 

"Wat^r-works bonds issued by a city when its total indebtedness, including school 
house bonds issued under E. S. 3894, §5975 (post, § 1518), equaled or exceeded the con- 
stitution limit of two per cent, are void. Wilcoxon v. City of Bluffton, Ind. Sup. Ct., 
June 14, 1899. 

1062. Location and condemnation.- — 2. The common council of 
any city or board of trustees of any incorporated town, which shall so 
determine to build water-works, or to make extensions of such water- 
works where they have heretofore been constructed or commenced, 
shall have authority to locate such works with all appendages, and 
lay such lines of pipe as may be required And in case the use of 
any lands, town lots, water-rights, or easements ; or use of any water 
from any pool, lake, or natural stream of water, or if such pool, lake, 
or natural stream of water shall be found necessary for the building, 
maintaining, or operating of such works, it shall be lawful for such 
common council or board of trustees, by themselves or agent, to enter 
upon and take possession of and condemn the same for these uses, and, 
for the supply with water, of any conduit pipes, stand-pipes, storage 
reservoirs, and settling and filtering basins. No artificial provision 
made for water by any person or corporation, or owned by any person, 
association, or body, shall be used or condemned without consent of 
the owner : Provided, That any such lands, town lots, water-rights, 
easements, pools, lakes, and natural streams of water shall not be 
used for any other purpose than for the use of said water- works. For 
the purpose of such condemnation and use, such common council or 
board of trustees shall have jurisdiction for ten miles beyond the 
limits of such city or town : Provided, further, That before such com- 
mon council or board of trustees shall proceed to take possession of 
such lands, lots, water-rights, easements, pools, lakes, and natural 
streams of water, for the purpose above mentioned, they shall appoint 
three commissioners, residents of such city or town, who shall be dis- 
interested freeholders, to appraise and assess the damages accruing to 
the owners of any lands, lots, water-rights, easements, pools, lakes, 
and natural streams of water, so taken and condemned for said work. 
Said commissioners shall, before they proceed to perform their duties 
as appraisers, take and subscribe an oath or aftirmation faithfully to 



§ 1063 CITIES AND TOWNS. 692 

perform all their duties as such appraisers ( which shall be indorsed 
upon or attached to their appointment), and file the same with the 
clerk of such city or town. Ten days' notice shall be given such com- 
missioners by said council or board of trustees, through the city or 
town clerk, of the appraisement to be made, giving a complete descrip- 
tion of the premises to be viewed. A like notice shall be given by 
personal service, or by leaving the same with some person of suitable 
age at their places of abode, to each of the owners or agents of lands, 
lots, water-rights, easements, pools, lakes, or natural streams to be so 
taken for such water-works, as in civil cases. If the owners are un- 
known or non-residents of this state, publication of the same in one 
or more newspapers of the town, of general circulation, or by posting 
up written or printed notices in six public places in such city or town 
(if there be no newspaper published therein) for three weeks, shall 
be deemed equivalent to such personal notice. R. S. 1894, § 4251. 

Constitutional.— This section is not unconstitutional because tiie city or town is given 
authority to appoint commissioners to assess the damages to property taken, Bass v. 
City of Ft. Wayne, 121 Ind. 389. 

Proceeding's to establish water-works— Collateral attack,— Where, in a proceed- 
ing to establish a system of water-works, there is jurisdiction and a right of appeal, de- 
fects or irregularities in the proceedings are not available in a collateral attack. Bass v. 
City of Ft. Wayne, 121 Ind. 389. 

Eoute determined by the council.— The question as to which is the most practicable 
and expedient route for the line of pipes is one exclusively for the common council, 
and its decision is not subject to review by the courts. Bass v. City of Ft. Wayne, 121 
Ind. 389. 

Condemnation of property— Injunction.— If proceedings are instituted for the pur- 
pose of appropriating a specifically described parcel of property an injunction will 
lie to restrain the city from appropriating property of an entirely different character 
from that specified in the proceedings. Bass v. City of Ft. Wayne, 121 Ind. 389. 

Same— Construction of statute.— -A city, by merely taking water from a reservoir 
above a dam, does not condemn any provision made for water within the meaning of 
this section. Bass v. City of Ft. Wayne, 121 Ind. 389. 

Mili-owner's rig'ht— Easement.— The right of mill-owners in a pond of water created 
by a dam which they have constructed is a limited easement, not an absolute right to 
the water, and a city may take from it its supply of water so long as it does not inter- 
fere v/ith the easement — the right to use the water in the propulsion of machinery. 
Bass v. City of Ft. Wayne, 121 Ind. 389. 

Corpus of water— Injunction.— Where the corpus of the water is taken without 
authority or jurisdiction, no injury being done to the easement of the mill-owner, only 
the owner of the fee may maintain injunction. Bass v. City of Ft. Wayne, 121 Ind. 389. 

1063. Assessment and report. — 3. Such commissioners, or a 
majority of them, shall at the place and time indicated in such notice, 
proceed to an examination of such lands, lots, water rights, ease- 
ments, pools, lakes and natural streams so desired to be taken or con- 
demned for the use of such water-works; and shall then and there 
estimate the damages accruing to the owner. They shall view the 
premises and receive any evidence touching the questions before them; 
and may, for that purpose, administer oaths to witnesses examined in 



693 WATER- WORKS. § 1064 

relation thereto. They shall make a report in writing of the amount 
of damages, if any, accruing to each owner, and within ten days there- 
after, file the same with the clerk of such city or town. R. S. 1894, 
§ 4252. 

1061. Tender of damages.— 4. When such report is filed, as in 
the preceding section required, the common council or board of trus- 
tees (if they accept the assessment so made) shall tender, or cause to 
be tendered, to the owner of such lands, lots, water rights, easements, 
pools, lakes or natural streams, or their heirs or representatives, the 
damage awarded by such commissioners; or if not found within the 
city or town, or if the award is not accepted, then the same shall be 
kept by the treasurer as a special deposit, subject to the order of such 
owner or his heirs or representatives. R. S. 1894, § 4253. 

1065. Appeal,— 5. The common council or board of trustees shall, 
within twenty days from the filing of said report, either accept or 
reject the terms of the same in whole or in part. And all parties 
aggrieved by such report may appeal therefrom, at any time within 
thirty days after the filing thereof, to the circuit court of the county, 
upon filing the usual bond with the clerk of such city or town for the 
payment of costs; but no such appeal shall prevent any such city or 
town from proceeding with said appropriation, construction and im- 
provement, as if no appeal had been taken. No other question shall 
be determined than the regularity of the proceedings in the suit and 
the amount of damages sustained. R. S. 1894, § 4254. 

Pipes laid in hig-Iiways— Appeal— Injunction.— The right of compensation for pipes 
laid in highways upon which the property owner's land abuts is triable on appeal, and 
injunction will not lie. Bass v. City of Ft. Wayne, 121 Ind. 389. 

1066, Trustees of water-works.— -6. The common council of any 
city or incorporated town in which water-works have been constructed 
or are now in process of construction or extension, or where water- 
works shall hereafter be ordered, shall establish a board of three trust- 
ees, to be known as the trustees of the water-works. Said trustees 
shall be elected at the annual city election by the qualified votes of 
such city or incorporated town, and shall hold their office for the term 
of three years; except that, at the first election under this act, one 
shall be chosen for one year, one for two years, and one for three 
years, and thereafter one of the trustees shall be elected annuallv. 
R. S. 1894, § 4255. 

Election of trustees— Statute construed.— The establishment of the board of trus- 
tees is not a necessary prerequisite to the election of those officers by the voters of a city. 
City of Lafayette v. State, 69 Ind. 218. 

Same— Notice of election— Ig-norance of law. — If the election of such trustees is 
otherwise regular, the want of any notice thereof, previously given, will not invalidate 
it. Nor will the ignorance of the people as to the existence of the law providing for the 
election of such trustees affect the validity of the election, as they are bound to take 
notice of the existence of such law and of the election thereunder. City of Lafayette 
v. State, 69 Ind. 218. 



§ 1067 CITIES AND TOWNS. 694 

Establishment of board of trustees— Notice.— No notice of the proceedings by the 
common council to establish the board of trustees of the water-works is necessary to 
give validity to the proceedings. City of Lafayette v. State, 69 Ind. 218. 

Charg'es ag'ainst—Investig'ation— Removal— Injunction.— The common council has 
power to entertain and inquire into the truth of charges of malfeasance in office, pre- 
ferred against trustees of the water-works, and to remove any or all of these officers for 
cause shown. The council can not be enjoined from proceeding to hear and investigate 
charges preferred against the trustees, and from removing them from office. Muhler v. 
Hedekin, 119 Ind. 481. 

[Acts 1899, p. 568. In force March 7, 1899.] 

1067. Purchase of water-works— Yaluation.— 1. That any city, or 
town, within this state having a population less than thirty thousand 
by the census of 1890 whose inhabitants are supplied with water by 
any person, corporation or company under contract heretofore made, 
whether by ordinance, resolution or otherwise, is hereby authorized 
and empowered to purchase such waterworks plant with all the lands, 
buildings, machinery, mains, hydrants, contracts, privileges and 
property owned by the person, corporation or company supplying 
such water, and to take conveyance for the same in the name of the 
city or town. The valuation of any such water works may be ascer- 
tained in the manner provided in any ordinance or contract heretofore 
made and now in force, or in any manner that may hereafter be de- 
termined upon by the common council, or board of trustees, of such 
city or town, and the owner of any such waterworks, and the pur- 
chase price of such property shall not exceed the valuation thereof 
when so determined. 

1068. Purchase subject to mortgage. — 2. That any such city or 
town, may purchase any such waterworks subject to any part of an 
existing mortgage debt upon the same, and in such case such city or 
town shall not assume or become directly or indirectly liable for the 
payment of such incumbrance, but such debt shall not be affected by 
the transfer: Provided, That such city or town may pay, and is hereby 
empowered to pay, in the discretion of its common council or board of 
trustees, the interest upon such mortgage debt in lieu of fire hydrant 
rentals now paid, and pay at its option any part of the principal of 
such debt out of any moneys remaining in the treasury and not other- 
wise appropriated. 

Municipal corporations can not avoid constitutional or statutory restrictions upon 
power to contract debts by purchasing property subject to liens. 2 Beach Conts., 
§ 1168; Iron wood Water- Works Co. v. Ironwood City, 99 Mich. 455; Mayor v. Gill, 
31 Md. 375; Litchfield v. Ballou, 114 TJ. S. 190. 

1069. Bonds— May issue. — 3. That for the purpose of paying the 
consideration for any such water works purchased as herein provided, 
any such city or town is hereby authorized to issue its bonds, with in- 
terest coupons attached, for an amount not exceeding "the appraised 
value of any such water works, which bonds may be in denominations 
of not less than fiftv dollars and -not more than one thousand dollars. 



€95 WATER-WORKS. § 1070 

and shall be paj^able at any place to be named in such bonds in install- 
ments not exceeding in all twenty years, and shall bear any rate of 
interest not exceeding six per cent, per annum, payable semi-annually, 
and such bonds may be negotiated in any market at not less than par. 
The amount of such bonds in no case shall exceed the constitutional 
indebtedness of such city or town. 

1070. Taxation for extensions, payment of bonds, mortgage, etc. — 
4. For the purpose of making extensions and repairs to such water 
works and of paying the principal and interest of any such bonds, and 
of auy incumbrance remaining upon any such water works, a tax of 
sufhcient amount shall be assessed on all the taxable property of any 
such city or town, and collected each and every year, in the usual 
manner of levying and collecting taxes in cities or towns: Provided, 
That the additional tax hereby authorized shall not exceed fifty cents 
on each one hundred dollars of taxable property at one dollar on 
each poll. 

1071. Control of. — 5. When any such water works shall have been 
purchased as herein provided, it shall be owned, controlled and man- 
aged in all respects by such city or town, as if built originally by the 
city or town, under the laws now in force in reference to the construc- 
tion and operation of water works by cities and towns in this State. 

[Acts 1891, p. 64. In force June 3, 1891.] 

1072. Trustees abolished in certain cities and towns. — 1. That 

the office of and board of water works trustees in cities and incorpo- 
rated towns of less than fourteen thousand (14,000) population by 
the last United States census be and the same is hereby abolished. 
[As amended, Acts 1895, p. 149. In force March 7, 1895.] Burns' 
Supp. 1897, § 4256. 

1073. Control of water-works by city or town. — 2. That in cities 
and incorporated towns of less than fourteen thousand (14,000) pop- 
ulation according to the last United States census, having water works 
established, or in which water works may hereafter be constructed or 
established, the city common council or the trustees of incorporated 
towns, may construct, conduct, maintain, manage and control their 
own respective systems of water works and may establish rules and 
ordinances for their management and control and may appoint such 
committees of the common council of cities or town trustees of incor- 
porated towns to direct and supervise the same, but the members of 
such committees shall not receive any pay in addition to their regular 
salaries, for services on such committees, and they may employ such 
agents and employes, with the consent of the common council of cities, 
or the town trustees of incorporated towns, to manage and conduct the 
same as they shall deem necessary and proper, and for such compen- 
sation as may be agreed upon or as shall be fixed by rule of the com- 
mon council of cities or the town trustees of incorporated towns; pro- 
vided, that in all cities to which this act applies, the work of making- 
duplicates of water rents and keeping all accounts, books of record 



§ 1074 CITIES AND TOWNS. 696 

and other necessary clerical work pertaining to the water works of 
such cities and incorporated towns, shall be performed by the treasurer 
thereof, and all water rents and incomes from whatever source of such 
water works system, shall be collected by such treasurer, who shall be 
the custodian of all funds belonging to such water works system, 
w^iether derived by direct taxation, by appropriation by the common 
council of cities, or board of trustees of incorporated towns, or from 
rents and other incomes of such water works system, and such water 
works funds shall be kept as a separate fund as now provided by law 
and shall not be appropriated to any other use or purpose than for the 
use and benefit of such w^ater works system and the payment of em- 
ployes and the general running expenses thereof. [As amended, Acts 
1895, p. 149. In force March 7, 1895.] Burns' Supp. 1897, § 4257. 

Superintendent of Avater-works— Bond — Sureties.— The town of Salem employed 
C as superintendent of water- works by a written contract defining his duties, including 
the collection of water rents, and took a bond conditioned for the faithful and impartial 
discharge of his duties as such superintendent. Prior to the amendment of said section 
by act of 1895, in the absence of any resolution or ordinance of the trustees of the town 
fixing the duties of C, and in the absence of any condition in the bond extending said 
C's authority to the collection and accounting of water rents, and in the absence of any 
statement in the bond mentioning or identifying any additional obligation imposed up- 
pon C, other than that of such ''superintendent," C was not a town officer, the bond 
w^as a non-official bond, and the sureties upon the same could not be charged with wa- 
ter rents collected by C, which he appropriated to his own use and failed to account for. 
Town of Salem v. McClintock, 16 App. 656. See City of Lafayette v. James, 92 Ind. 240. 

[Acts 1879 S., p. 88. In force March 25, 1879.] 

1074, Duties and pay of trustees, — 7. Said trustees shall receive 
such compensation as the common council or board of trustees may 
determine; and shall give bond in such sum as the common council 
or board of trustees shall order, for the faithful performance of their 
duties and the strict accounting for any funds that shall come into 
their hands: and they shall manage, conduct, and control the works, 
furnish supplies of water, collect water rents, appoint all necessary 
officers and agents and determine the tenure of office and amount of 
salaries of the officers and agents so appointed. R. S. 1894, § 4258. 

Trustees' bond — Mandate. — It is the duty of the common council to determine, by 
an order, the sum in which the trustees shall give bond, and this duty may be enforced 
by mandate. City of Lafayette v. State, 69 Ind. 218. 

Audit of accounts— City orders.— The board of water-works trustees of a city, and 
not the common council, are the proper officers to audit, allow and direct the payment 
of claims against the water- works ; but for debts incurred for water furnished the city 
prior to the appointment and qualification of a board of water-works trustees, the com- 
mon council may rightfully issue warrants on the city treasurer. City of Connersville 
V. Connersville, etc., Co., 86 Ind. 184; City of Connersville v. Connersville, etc., Co.,. 
86 Ind. 235. 

1075. By-laws and rules. — 8. Said trustees shall be authorized to 
make such by-laws and regulations as they may deem necessary for 



697 WATER- WORKS § 1076 

the safe, economical, and efficient management and protection of the 
water-works; and such by-laws and regulations shall have the same 
validity as ordinances, when not repugnant thereto or to the constitu- 
tion and laws of the state. R. S. 1894, § 4259. 

1076. Water-rents. — 9. For the purpose of paying the expenses 
of managing and operating the water works, the trustees of the water- 
works shall have power to assess and collect, from time to time, a 
v\^ater rent of sufficient amount, in such manner as they may deem 
most equitable, upon all tenements and premises supplied with Vv^ater, 
and from manufacturing establishments and railroad shops, and for 
the supply of boilers, locomotive engines, and for all other purposes 
tending to increase the income of the works. R. S. 1894, § 4260. 

1077. Application of fniid. — 10. Should there be any surplus 
money after paying the expenses of operating the water-works, the 
sum may be applied to the repair, enlargement, or extension of the 
works or of the reservoirs, the payment of the interest of any loan 
made for their construction, or for the creation of a sinking fund for 
the liquidation of the debt. R. S. 1894, § 4261. 

1078. Reports. — 11. The trustees of the water-works shall make 
monthly reports to the common council or board of trustees of the re- 
ceipts and disbursements of money belonging to the water-works, and 
an annual report of the condition of the same; and all money collected 
for water-works purposes, they shall cause to be deposited, weekly, 
with the treasurer of the city or town; and the receipt therefor shall 
be, by such collectors, deposited with said trustees or their authorized 
agent. R. S. 1894, § 4262. 

1079. Fnnds, how kept, — 12. All moneys so deposited shall be 
kept a separate and distinct fund, subject to the order of said trustees. 
And all orders drawn by said trustees on the treasurer of the city or 
town shall be signed by at least two of the trustees, and countersigned 
by the clerk of the water-works. R. S. 1894, § 4263. 

1080c Contracts. — 13. Said trustees shall be authorized to make 
contracts for the erection of water-works buildings, and construction 
of settling basins and other appendages, and the enlargement and 
repairs thereof; for the purchase of machinery and the manufacture 
and laying down of pipe; for the furnishing and supplying wdth con- 
nections of all necessary fire-hydrants for fire department purposes, 
and for keeping the same in repair; and for all other purposes neces- 
sary to the full and efficient management and construction of the 
water- works; and such contracts shall be subject to the ratification by 
the common council [or board of trustees] . R. S. 1894, § 4264. 

City's duty as to streets— Construction of water-works.— It is the duty of municipal 
corporations to see that the streets are not left in a dangerous condition while water- 
works are being constructed by a contractor. City of Logansport v. Dick, 70 Ind. (35. 

1081, Investigating committee. — 14. The common council or 
board of trustees of any city or incorporated town in which water- 
works are or may be situated or in process of construction, shall be 



§ 1082 CITIES AND TOWNS. 698 

authorized to appoint a committee of investigation of 'all books and 
papers together with all matters pertaining to the management of the 
water-works, at least once a year, and oftener, if necessary by reason 
of any neglect of duty or malfeasance on the part of any officer of the 
works; and any officer of the works found, by said committee, so 
offending shall be liable to removal from office by the council [or 
board of trustees]. R. S. 1894, § 4265. 

Power to investig'ate charg^es ag'ainst water-works trustees.— The common coun- 
cil h'as power to entertain and inquire into the truth of charges of malfeasance in office, 
preferred against trustees of the water-works, and to remove any or all of these officers 
for cause shown. Muhler v. Hedekin, 119 Ind. 481; City of Madison v. Korbly, 32 
Ind. 74. 

1082. Water free for public uses, — 15. No charge shall be made 
by the trustees of the water-works for supplying water for the ex- 
tinguishment of fires, or for furnishing and supplying connections 
for fire-hydrants, and keeping the same in repair for fire department 
purposes; or for the cleansing of market houses; or for the use of any 
public buildings belonging to the city or town; or for flushing out 
sewefs or other sanitary purposes. R. S. 1894, § 4266. 

1083. Attachments regulated. — 16. All attachments of whatever 
nature made to the water-pipes or other fixtures belonging to the 
water-works, and intended for public use, shall be subject to the same 
supervision, rules, and regulations as are made for the protection of 
water-works against abuse, destruction, and inordinate or unnecessary 
use or waste of water; or the trustees may make general or special 
rules and regulations for such purposes. R. S 1894, § 4267. 

1084. Advertising. — 17. Said trustees, before entering into any 
contract for work to be done, shall cause two weeks' notice to be given 
in one or more daily newspapers of general circulation within the 
city or town, that proposals will be received by the trustees for per- 
forming the work, or the several parts of the same specified in said 
notice ; and the trustees shall contract with the lowest bidder, if in 
their opinion said lowest bidder can be depended on to do the work 
with ability, promptness and fidelity; which contract shall be subject 
to ratification by the common council [or board of trustees], as here- 
tofore provided. But if such be not the case, said trustees may give 
the contract to the next lowest bidder, or decline to contract, and re- 
advertise. Or if no daily newspaper be published in such city or 
town, then such notice shall be published three weeks consecutively 
in a weekly newspaper of general circulation within such city or town. 
R. S. 1894, § 4268. 

1085. Bonds, — 18. Said trustees shall require bond to be given, 
with good and sufficient security for the faithful performance of the 
V\^ork ; but no member of said board of trustees shall be such security; 
nor shall any trustee be a contractor, or in any wise, either directly 
or indirectly, be interested in any such work to be contracted for. 
Such bonds shall be submitted to the common council [or board of 
trustees] for approval. R. S. 1894, § 4269. 



699 WATER- WORKS. § 1086 

1086. Tax to pay loans. — 19. For the purpose of paying the prin- 
cipal and interest on the money borrowed for the erection and com- 
pletion of any water works or for the extension or improvement of 
such works, a tax of sufficient amount shall be assessed on all the tax- 
able property of the city or incorporated town, and collected, each and 
every year, in the usual manner of levying and collecting taxes in the 
city or town: Provided, always, The additional special tax hereby 
authorized shall not, in any year, exceed fifty cents on each one 
hundred dollars of taxable property and one dollar on each poll. R. 
S. 1894, § 4270. 

1087. Lien of tax. — 20. The said tax, when levied and assessed, 
shall be a lien upon the property upon which it is levied and charged 
against the owners thereof, and shall be placed on the city or town 
duT3licate in a separate column thereof, and be collected as other taxes. 
R.^S. 1894, § 4271. 

1088. Preyentiiig pollution. — 21. The jurisdiction of any city or 
incorporated town owning water works shall extend, for the purpose 
of preventing and punishing any pollution of the w^ater, five miles 
beyond the corporation limits: Provided, If any person o waning a water- 
power or mill property within the limits herein prescribed, in the use 
or management of which any stream is polluted to such an extent that 
the water thereof is thereby rendered unfit for use for such city pur- 
poses, such property or w^ater-power may be condemned for the benefit 
of such city; but, before the same is done, such mill property shall be 
appraised by three disinterested resident freeholders of the county in 
which such property is situate, one of whom shall be selected by such 
trustees, one by the owner of such property, which two shall select a 
third. Said appraisers shall appraise such property at its fair cash 
value; and upon the tender of the same by the city [or town] , and re- 
fusal by the mill-owner to accept the value appraised as aforesaid, such 
business may be injoined in any court of competent jurisdiction. R. 
S. 1894, §4272. 

1089. Bonds to pay for stock in water-works companies. — 1. That 
whenever any city or incorporated town by ordinance or resolution of 
the common council of such city or board of trustees of such incorpo- 
rated town shall have authorized any incorporated company or asso- 
ciation to construct water-works for furnishing such city or incorpo- 
rated town with wholesome w\^ter and such city or incorporated town 
shall have become a part stockholder in such water-works company or 
association by subscribing to the capital stock thereof, such 'city or 
incorporated town shall have the power to borrow money to pay for 
the stock so subscribed, and the common council of such cit}^ or the 
board of trustees of such incorporated town is hereby authorized to 
issue the bonds of such city or incorporated towai payable at such 
time as the common council of such city or the board of trustees of 
such incorporated town may direct, and bearing interest at the rate of 
not exceding six per cent, per annum, and may negotiate and sell the 
same at not less than face value and the proceeds of such bond shall 



§ 1090 CITIES AND TOWNS. 700 

be applied only to the payment of such stock subscribed. [As 
amended, Acts 1895, p. 140. In force March 7, 1895.] Burns' 
Supp. 1897, § 3614. 

See ante, § 124, clauses 26 and 43 ; also a7ite, § 1061. 

ARTICLE 5.— SEWERS. 

SEC. SEC. 

1090. Local sewers. 1093. Construction of sewers — Condemna- 

1091. General sewers. tion of land for. 

1092. Assessments for sewers in cities and 1094. Ditches and drains under drainage 

towns. laws. 

1095. May convert into sewers. 

[Acts 1893, p. 332. In force March 4, 1893.] 

1090. Local sewers. — 1. That whenever the board of trustees or 
common council of any town or city shall desire to construct sewers 
or make sewer improvements, and whenever any such sewer shall 
from its size and character be intended and adapted only for local use 
by property-liolders along the line of the street or alley on which it is 
constructed, and in the opinion of such board or common council is 
not intended or adapted for receiving sewerage from collateral drains, 
then, and in that case, the whole cost of the improvement shall be 
paid for by the propert3^-holder abutting on such street or alley in the 
same manner and to the same extent as street improvements are paid 
for, except that such town or city shall not be liable for the portions 
of such local sewer which cross other streets or alleys, but the total 
cost shall be apportioned pro rata against property-holders. R. S. 
1894, § 4273: 

See a7ite, § 124, clauses 26 and 43 ; also, §§ 127 and 183, et seq., and posf, § 1107, et seq. 

Street improvement assessment according" to lineal measurement.— With refer- 
ence to a sewer constructed before the enactment of this statute, an assessment for a 
public sewer made under the statute for street improvements, and placing the assess- 
ment not according to the benefits received but according to the lineal measurement of 
the property fronting on the sewer, is void. Crawfordsville, etc., Assn. v. Clements, 12 
App. 464. 

Power to build sewers a continuing- one.— The power in the municipal officers to 
determine when they shall act in the matter of constructing a sewer, carries with it the 
power of determining how frequently they shall act ; and if it be found that one local 
sewer is inadequate to furnish sufficient drainage, the city has the power to construct 
additional sewers, and to assess the costs against the property benefited. Coburn v. 
Bossert, 13 App. 359. 

1091. General sewers. — 2. Whenever in the opinion of such board 
or common council any sewer or drain ordered to be constructed, or 
any enlargement of one already constructed, shall from its size and 
character be intended and adapted not only for use by abutting prop- 
erty holders along the line of such drain or sewer, but it is also in- 
tended and adapted for receiving sewerage from collateral drains 
already constructed, or which may be constructed in the future, then, 
and in that case, such board or common council shall make a division 



701 SEWERS. § 1092 

of the cost of sucli work. So mucli of such cost as shall be ec[uivalent 
to the construction of an adequate local sewer not adapted to receive 
sewerage from collateral drains or sewers shall be paid for exclusively 
by the abutting property holders, in the same manner and to the same 
extent as local sewers are paid for by them. The excess of cost over 
and above what would be ec[uivalent to the cost of a local sewer shall 
be assessed against each piece of property beneficially affected in pro- 
portion to the benefits received, including abutting property holders, 
as well as the holders not situated on the line of such drain or sewer, 
but in the opinion of the board or common council beneficially affected 
by the construction of such sev/er, either directly or immediately or 
indirectly, and by way of the advantage which shall be realized in the 
future when collateral drains may be constructed from such property 
to such main sewer. R. S. 1894, § 4274. 

1092. Assessments for sewers in cities and towns, — 3. The provis- 
ions of the acts of the general assembly of the state of Indiana relating 
to the assessment for street improvements shall govern such board, or 
common council, in making assessments for the cost of any local 
sewer or drain, or the equivalent thereof. In the construction or en- 
largement of any sewer or drain adapted for more than local use the 
provisions of the acts of the general assembly of the state of Indiana 
relating to the assessments of benefits in the laying out of streets shall 
govern such board or common council in assessing benefits: Provided, 
That in the case of sewers the assessments may be made to run twenty 
years, and the bonds issued to anticipate said assessments, may also 
be issued payable, during a period of twenty years: Provided, further, 
That none of the provisions of this act shall apply to cities having 
more than 100,000 inhabitants as shown by the last census of the 
United States. [As amended, Acts 1895, p. 87. In force March 2, 
1895.] Burns' Supp., 1897, § 4275. 

Act construed— Coiiiicii's Jurisdiction to let contract— Assessments— Barrett law. 

— This act has reference only to the proper mode of making the assessments after the con- 
tract has been let and the work completed, and does not affect the jurisdiction of the 
common council in the letting of the contract for the construction of a sewer under the 
Barrett law. The common council is not required to submit to the city commissioners, 
before taking steps for the construction of a sewer, the matter of appraisement of bene- 
fits and damages to the property to be affected by the proposed improvement. Alley v. 
City of Lebanon, 146 Ind. 125. 

[Acts 1899, p. 541. In force March 6, 1899.] 

1093, Construction of sewers — Coiideiiniation of laud for. — 1. That 

the common council of any city or board of trustees of any incorpo- 
rated town in this state shall have full power and authority to con- 
struct and maintain sewers along any street or alley, or along any 
part of street, block or square in any town or city in this state, or 
along or across any lots or tracts of land, or along or across the right 
of way of any railroad in any incorporated city or town in this state; 
and the common council of any city or the board of trustees of any in- 
corporated town shall be the sole judges of the necessity or utility of 



§ 1094 CITIES AND TOWNS. 702 

the construction of such sewers. And for that purpose may enter 
upon, seize, appropriate and condemn any lot or part of lot, or any 
tract of unplatted land, or any part of any tract of unplatted land, or 
the right of way or other lands of any railroad company, person or 
corporation either within or without the corporate limits of said town 
or city, for the construction of any such sewer or sewers upon the pay- 
ment of damages as provided under and pursuant to the provisions of 
an act entitled ''an act in relation to the laying out, opening, widen- 
ing, altering and vacation of streets, alleys and highways, and for 
straightening or altering of water courses by the cities of this state, 
and providing for the appointment of commissioners to assess the 
benefits and damages, and prescribing their duties and the methods of 
procedure and providing for the collection of benefits and payment of 
damages and prescribing the duties of city officers in relation thereto, 
and providing remedies in such matters," approved March 17, 1875, 
and the amendments thereto. 

[Acts 1899, p. 429. In force April 27, 1899.] 

1094. Ditches and drains under drainage laws. — 1. That such 
parts of public ditches or drains constructed, or that may be con- 
structed under any drainage laws of this state, that are within the cor- 
porated limits of any city or town, shall be kept in repair by the mar- 
shal of such city or town, he performing the same duties, exercising 
the same powers and receiving the same compensation as township 
trustees under the laws of this state relating to the repair of public 
ditches. 

1095. May convert into sewers. — 2. The common councils of cit- 
ies and the boards of trustees of towns are hereby vested with power 
to convert the parts of public ditches and drains constructed under 
any drainage law of this state, that are within the corporate limits of 
such city or town, into sewers and to that end may change and vary 
the location of any such part of a public ditch or drain, providing 
that no change of location or conversion into a sewer will effect the 
general purpose of such ditch or drain, and providing further that no 
lands lying outside of the city or town, shall be charged with any ad- 
ditional burden by reason of such change. 





ARTICLE 6.- 


-CEMETERIES. 


SEC. 




SEC. 


1096. 


Conveyance by county board. 


1102. Removal and re-interment. 


1097. 


Control. 


1103. Title not affected. 


1098. 


Power to protect. 


1104. Appropriation of lands for cemetery. 


1099. 


May vacate. 


1105. Appraisers. 


1100. 


Petition and finding. 


1106. Report— Exceptions— Trial— Pay- 


1101. 


New cemeteries— Expense of re- 
moval. 


ment. 



[Acts 1867, p. 31. In force March 4, 1867.] 

1096. Conveyance by county board. — 1. It shall be lawful for the 



703 CEMETERIES. § 1097 

board of county commissioners of any county in this state to convey 
to the board of trustees of any incorporated town or to the common 
council of any city, and the successors in office of such trustees or 
councilmen, any cemetery adjoining to or within the corporate limits 
of such town or city, upon the application of a majority of the citi- 
zens of such incorporated town or city, or on petition of the president 
and trustees of such incorporated town or the mayor and common 
council of such city to such county board, notice of which application 
shall have been given by publication in a newspaper of general circu- 
lation printed and published in such city or incorporated town, by 
posting up not less than three written advertisements of such in- 
tended application in public places therein, for not less than twenty 
days before any regular session of such board of county commission- 
ers. R. S. 1894, § 4276. 

1097. Control. — 2. Upon such conveyance being made of any such 
cemetery to any town or city, it shall be their duty to accept and re- 
cord the same upon their records, and also have the same recorded 
upon the records of deeds by the recorder of the county in which such 
town or city may be situated; to take possession of and control, im- 
prove and protect and preserve such cemetery; and lay out lots, and 
make all necessary regulations for interments therein. R. S. 1894, 
§ 4277. 

1098. Power to protect.— 3. The board of trustees of such incorpo- 
rated town or mayor and city council of such city shall have full 
power to make and enforce all necessary ordinances for the control 
and protection of such cemetery, and for the prosecution and punish- 
ment of any person, for the commission of any waste or trespass with- 
in or upon such cemetery, or upon any grave, monument, tomb, or 
tombstone, inclosure or ornament thereof, or any shrubbery or flowers 
thereon. R. S. 1894, § 4278. 

Cemetery by dedication— Estoppel.— Land may be dedicated to the public for use 
as a cemetery. Such dedication may arise out of the conduct of the owner of the land 
and the acts of those who rely thereon, and the owner will be estopped to interfere 
with the use which he has occasioned. Eedwood, etc., Ass'n v. Bandy, 93 Ind. 246. 

City's power of control, etc. — For city's power of control beyond city limits, and 
authority to determine the necessity of establishing cemeteries within city limits, under 
certain charter provisions, see Bogert v. City of Indianapolis, 13 Ind. 134; Begein v. 
City of Anderson, 28 Ind. 79; City of Greencastle v. Hazelett, 23 Ind. 186. 

Bodies of the dead —Ownership — Eemoval by city— Damages— Rights of lot- 
owners, etc. — Upon these subjects see Renihan v. Wright, 125 Ind. 536 ; Hamilton v. City 
of New Albany, 30 Ind. 482; Dwenger v. Geary, 113 Ind. 106; Bogert v. City of 
Indianapolis, 13 Ind. 134. 

[Acts 1881, p. 17. In force September 19, 1881.] 

1099. May vacate. — 1. Where any cemetery within or adjoining 
the corporate limits of any city or incorporated town in this state has 
been or shall hereafter be conveyed to such city or town by the board 
of commissioners of the county in which such city or town is situate; 
or when any such cemetery exists wherein burials have been made by 



§ 1100 CITIES AND TOWNS. 704 

the license or permission of the owner or owners of the lands wherever 
[whereon] such cemetery is located, or when any such cemetery exists 
by the dedication of the lands wherever [whereon] situated by the 
owner or owners thereof for burial purposes, the common council of 
such city or the board of trustees of such town may vacate such ceme- 
tery as hereinafter provided. R. S. 1894, § 4279. 

1100. Petition and finding. — 2. When five resident freeholders of 
such city or town shall, in writing, petition the common council of 
such city, or the board of trustees of such town, to vacate, such ceme- 
tery, the same shall be entered at length in the proper record of pro- 
ceedings of such common council or board of trustees. And if, upon 
considering such petition, such common council or board of trustees 
shall find that such cemetery has fallen into neglect and disuse; that 
remains of deceased persons have been from time to time exhumed 
and removed therefrom on account of such neglect, and that the same 
hinders and obstructs the growth of such city or town, or any part 
thereof; or that the same is injurious to the health of the neighbor- 
hood in which the same is located, such finding shall be entered at 
length in said record of proceedings, together with an order that such 
cemeteries be vacated. [As amended. Acts 1891, p. 298. In force 
June 3, 1891.] R. S. 1894, § 4280. 

[Acts 1891, p. 298. In force June 3, 1891.] 

1101. New cemeteries — Expense of removal. — 2. The common 

council of such city or board of trustees of such town are authorized 
and empowered to receive by gift, or to purchase, ground within or 
without such city or town, whereon to re-inter bodies removed from 
such vacated cemetery, and such ground shall be held and maintained 
as a city or town cemetery. Such city or town shall assign and con- 
vey for burial purposes, to each owner of a lot or lots in such vacated 
cemetery, a lot or lots in such new burial ground equal in number to 
the lots owned by him in such vacated cemetery, which lot or lots in 
such new burial ground shall be taken and held by such lot owner in 
lieu of, and as compensation for, all his rights, title and interest in 
said vacated cemetery. If the cemetery so vacated shall be a private 
cemetery, the expense of removing and re-interring the bodies buried 
thereon, with their proper monuments or grave-marks, together with 
the cost of purchasing so much of new burial grounds, if the same be 
purchased, as will equal in area the land embraced in such vacated 
cemetery, shall be a lien upon the lands embraced in such vacated 
cemetery in favor of such city or town, which lien may be foreclosed 
according to the same procedure and upon like notice as required for 
the foreclosure of mortgages. R. S. 1894, § 4281. 

[Acts 1881, p. 17. In force September 19, 1881.] 

1102. Removal and re-interment. — 3. Such common council or 
board of trustees shall thereupon prepare, as nearly as may be, a com- 
plete list of the names of the deceased persons remaining interred in 



705 CEMETERIES. § 1103 

such cemetery, and shall publish the same for three weeks successively 
in some newspaper of general circulation printed and published in the 
county, together with a notice to all persons interested, that on and 
after the time stated in such notice (which shall not be less than 
thirty days after the last publication thereof), such common council or 
board of trustees will proceed to exhume the remains in such cemetery. 
The remains of such persons as may be claimed by their relatives or 
friends shall be delivered to such claimants for removal and re-inter- 
ment. The remains of all persons remaining unclaimed shall be re- 
moved and properly re-interred in some suitable cemetery or burial 
ground in the vicinity of such city or town, by and at the expense of such 
city or town; and all monuments, grave-stones or other distinguishing 
marks shall be removed with such remains, and placed in proper posi- 
tion. Such common council or board of trustees shall also record in 
the proper record of their proceedings, the names, as ascertained, of 
all deceased persons re-interred by them, together with a description 
of the place of re-interment. R. S. 1894, § 4282. 

1103. Title not affected. — 4. The title to the cemetery grounds 
where the same has been or shall be conveyed by the board of com- 
missioners of the county to any city or town, after such cemetery shall 
have been vacated, shall in nowise be disturbed thereby, but the same 
shall continue in and be preserved to such city or town. R. S. 1894, 
§ 4283. 

1104. Appropriation of lands for cemetery, — 1. That whenever in 
the opinion of the common council of any city, or the board of trust- 
ees of any incorporated town, or the trustees of any corporation, own- 
ing or controlling a public cemetery in any county in Indiana, it be- 
comes necessary to purchase real estate for cemetery uses, such com- 
mon council, or such trustees, may file a petition in the circuit court 
of said county asking for the appointment of appraisers to appraise 
and assess the value of said real estate. It is provided that where any 
cemetery society has heretofore regularly caused its articles of associa- 
tion to be recorded in either the miscellaneous, mortgage or deed 
records of its county such organization is hereby legalized. [As 
amended. Acts 1897, p. 309. In force March 8, 1897.] Burns' Supp. 
1897, § 4704a. 

Act constitutional. — The statute relating to condemnation of land for the purpose of 
a public cemetery is not unconstitutional, in that it delegates to corporation officers 
Judicial power to determine the necessity for such appropriation; nor is it unconstitu- 
tional on the ground that it does not provide for trying and determining the question of 
public necessity. Farneman v. Mount Pleasant Cemetery Ass'n, 135 Ind. 344. 

Petition to determine land for an addition— Sufficiency.— The petition to annex 
land to a public cemetery, which states that the petitioner is a corporation owning and 
controlling a public cemetery in, etc. ; that, in the opinion of its trustees and directors, 
it has become necessary to purchase the real estate therein described, for its use as an 
addition to such cemetery, etc., sufficiently shows a purpose to condemn the land for a 
public use. Farneman v. Mount Pleasant Cemetery Ass'n, 135 Ind. 344. 

CiT. AND To. — 45 



§1105 



CITIES AND TOWNS. 



706 



1105. Appraisers, — 2. Upon said petition being filed, the owner or 
owners of said real estate, having had ten days' notice of the pendency 
thereof, the court shall appoint three freeholders, residents of the 
township wherein said real estate is situate, to appraise and assess the 
value thereof. R. S. 1894, § 4705. 

1106. Report — Exceptions — Trial — Payment. — 3. Said appraisers, 
before making said assessment, shall take an oath before the clerk of 
said court to make a fair, true and honest appraisement of said real 
estate, and shall then proceed to examine said real estate, hear such 
evidence as they may consider necessary, and make a report of their 
appraisement within five days after their appointment. Upon said 
report being filed the owner or owners of said real estate may except 
to the same for any cause, and a trial thereon may be had in said court. 
When the value of said real estate shall finally be determined in said 
court, said trustees may pay the amount determined to the clerk of 
said court for the use of the owner or owners of said real estate. R. S. 
1894, § 4706. 



ARTICLE 7.— STREET IMPROVEMENTS. 



SEC. SEC. 

1107. Petitions for street improvements — 1120. 

Procedure. 

1108. Resolution of necessity — Notice to 1121. 

objectors. 1122. 

1109. Apportionment of costs — Liens — 

Sale. 1123. 

1110. Allowance to owner who has im- 1124. 

proved — Bonds. 1125. 

1111. Estimates — How paid — Liens. 1126. 

1112. Final estimate of costs — Report of 

engineer. 1127. 

1113. Notice of hearing — Assessments — 1128. 

Liens — Payment in installments. 1129. 

1114. All persons may pay by installments. 1130. 

1115. Street and sewer bonds — Lien. 

1116. Certificates to contractor — Collect- 1131. 

ing assessments — Foreclosure. 1132. 

1117. Precept for sale — Appeal — Sale and 

conveyance. 1133. 

1118. Act not to apply to cities of one 1134. 

hundred thousand, 

1119. Estimates — Contractors to satisfy of 1135. 

record. 



Cost of improvements — Apportion- 
ment — Cities less than 5910, etc. 

Act supplemental. 

Sidewalk improvements— Certain cit- 
ies, 

Grad e — Contract— Terms . 

Notice. 

Contract to lowest bidder. 

Assessments — How collected — Fore. 
closure. 

Contractor's receipt. 

Change of grade. 

Improvements under other laws. 

Street improvements in towns and 
cities of less than 12,000, 

Cleaning streets and alleys. 

Actions to enforce improvement as- 
sessments — Notice, 

Attorneys' fees — Amount. 

Owner may recover illegal fees tind 
penalty. 

Misdemeanor — Penalty. 



[Acts 1889, p. 237, In force March 8, 1889.] 

1107. Petitions for street improvements — Procedure. — 1, That 
when the owners of two-thirds of the whole line of lots or parts of 
lots in any city or incorporated town (and measuring only the front 
line of such lots as belong to such persons resident in such city or 
town) bordering on any street or alley consisting of one whole 



707 STREET IMPROVEMENTS. § 1107 

square between any two streets crossing the same, or if the common 
council of such city, or the board of trustees of such town, deem it ex- 
pedient for any reasonable distance less than one whole square or 
block upon any square or alley, shall petition the common council of 
such city or board of trustees of such town to have the sidewalk graded 
and paved, or the w^iole width of the street graded and paved, or for 
either kind of improvement, or for lighting such streets according to 
the general plan of improvements in said city or incorporated town, 
or for constructing a sewer, the common council of such city or the 
board of trustees of such town may cause the same to be done by con- 
tract, given to the best bidder, after advertising for three w^eeks in 
some newspaper of general circulation published within the city or in- 
corporated town, to receive proposals therefor, and the common coun- 
cil of such city, or the board of trustees of such town shall have the 
power to compel the owner or owners of a lot or part of a lot on any 
street or alley, or upon any part of any street or alley, to repair the 
sidewalk in front of their respective lots or parts of lots, and in case 
the owner or owners of any lot or part of a lot on any street or alley, 
or any part thereof, fail or refuse to repair the sidewalk in front of 
their lots, or if the owner be a non-resident of said city or tow^n, or 
can not be found, the common council of such city or the board of 
trustees of such town may cause such repairs to be made at the cost 
and expense of the owner or owners of such lot or lots; or if such side- 
walk be dangerous, the street commissioner or any officer of said city 
or incorporated town may cause such repairs to be made immediately, 
and the city or incorporated town shall have a lien on such lot or lots 
for the reimbursement to her of the cost of such improvement, and the 
common council of such city or the board of trustees of such town are 
hereby invested with full powers to pass by-laws and ordinances pro- 
viding how and in what manner the repairs or improvements shall be 
made and in what manner the cost shall be assessed and collected from 
such owner or owners, and the manner in which the lien of the city 
or incorporated town for the expense incurred by her ma}^ be enforced 
against the lot or lots of such owner or owners, and the city or incor- 
porated town may bring an action, by its attorney, in any court of 
competent jurisdiction to foreclose such lien as a mortgage is fore- 
closed, and in such action may recover, in addition to the amount of 
such lien and the costs of such proceedings, a reasonable attorney fee, 
for the use of its attorney, for enforcing such lien, and such property 
shall be sold without relief from valuation or appraisement laws, and 
upon the sale of such property, if no other person bid, the amount of 
such judgment and all costs, the city or incorporated town may pur- 
chase said property for such judgment and all costs, and if not re- 
deemed within one year from the time of such sale, the sheriff shall 
issue to the holder of the certificate of sale a deed for such property, 
and such city or incorporated town, if such deed be issued to it, shall 
become the absolute owner of such property: Provided, That any city 
or incorporated town having a population less than ten thousand may. 



§ 1107 CITIES AND TOWNS. 708 

by a two-thirds vote of all the members of the common council of such 
city or the board of trustees of such town, cause plank or gravel walks, 
of such dimensions as such council or such board of trustees may de- 
termine, to be constructed either upon the natural grade of the side- 
walk therein or any modification thereof established by such council 
or such board of trustees, and the cost and expense of any such im- 
provement or repairs thereto shall be a lien upon the real estate front- 
ing thereon, and shall be assessed and collected in the same manner 
as now prescribed by law for collecting assessments for improving 
streets, alleys and sidewalks: Provided, further, That when the state 
of Indiana is the owner of property on or along the street or streets pro- 
posed to be improved, as hereinbefore provided, the common council 
of such cit}" or the board of trustees of such town shall not contract 
for the execution of said improvements, involving the state in any 
liability, without first obtaining the written consent and approval of 
the auditor and treasurer of state, but such city or incorporated town 
may make such improvement at its own expense. R. S. 1894, § 4288, 

See ante, § 219, et seq. 

For sewers, cities, see ante, § 124, clauses 26 and 43, and §§ 127 and 183, et seq. ; also 
ante, § 1090, et seq. 

Construction— RepeaL— This act is constitutional. McEneney v. Town of Sullivan, 
125 Ind. 407. 

This act repealed by implication the act for the improvement of streets in towns, ap- 
proved April 27, 1869. (R. S. 1894, §§ 4401, 4402, 4403.) Koons v. Cluggish, 8 App. 
232; Cluggish v. Koons, 15 App. 599; Allen v. Town of Salem, 10 App. 650. 

This act does not repeal the act of 1859 (R. S. 1894, §§ 4394-4397," i?os^, § 1250, et seq.), 
for the grading and laying of sidewalks in incorporated towns. Shrum v. Town of 
Salem, 13 App, 115; Allen v. Town of Salem, 10 App. 650. 

Existing" remedies. — This act does not affect such remedies as had attached to 
accrued liabilities previous to the taking effect thereof. Phillips v. Jollisaint, 7 xlpp. 
458; Koons v. Cluggish, 8 App. 232; Daggy v. Ball, 7 App. 64. 

Purpose of statute.— It is the purpose, spirit and language of the act to enable the 
city to require improvements, to dictate the character thereof, to contract therefor, to 
enforce the payment of benefits by property ow^ners, to aid the property owner in de- 
ferring such payments by issuing the bonds of the city, from the proceeds of sales of 
which to pay the contractor, and from the annual payments of the property owners 
upon their assessments to meet the maturing bonds. Porter v. City of Tipton, 141 
Ind. 347. 

This statute is supplementary to, and is to be construed in connection with, the gen- 
eral law for the construction of sewers. Chicago^ etc., R. Co. v. City of Huntington, 
149 Ind. 518; Alley v. City of Lebanon, 146 Ind. 125. And should be construed with 
the improvement resolution and contract. City of Huntington v. Force, Ind. Sup. Ct., 
April 4, 1899. 

Statute construed— Collateral proceeding's— Jurisdiction.— Statutes granting to 
municipal corporations powers w^hich involve the imposition of burdens upon private 
property are to be strictly construed, and w^here such statute requires the doing of some 
particular thing in its nature jurisdictional, as a condition precedent to the right to 
impose such burden, the failure to do the thing required will render the whole proceed- 
ing void. In matters of local improvement, however, where jurisdiction over the 
whole subject is conferred upon a municipal corporation, with power to make local 
assessments for that purpose, any failure to comply strictly with any statutory requiie- 
ment, not affecting the jurisdiction, will be regarded as a mere irregularity, and in a 
collateral proceeding will be disregarded. Barber, etc., Co. v. Edgerton, 125 Ind. 455; 
Sands v. Hatfield, 7 App. 357; Lewis v. Albenson, App. Ct., May 24, 1899; Elliott 
Roads and Streets, pp. 371, 373, 37-1. 



709 STREET IMPROVEMENTS. § 1107 

Improvement without petition.— AVhile it is provided that street and sewer improve- 
ments may be made on petition, yet such improvements may also be made in towns and 
cities, by a vote of two-thirds of the board of trustees or common council, without peti- 
tion, even against the remonstrance of the property owners. Keith v. Wilson, 145 Ind. 
149; McEneney v. SulHvan, 125 Ind. 407; De Puy v. City of Wabash, 133 Ind. 336; 
Pittsburgh, etc., R. Co. v. Town of Crown Point, 150 Ind. 536. 

Petition insufficient. — The fact that there is an insufficient petition does not neces- 
sarily render the proceedings void for want of jurisdiction, for the proceedings may not 
have been founded upon the petition. McEneney v. Town of Sullivan, 125 Ind. 407. 

Same— Adjudication of council— Collateral attack.— The determination by the 
council or board of trustees of the sufficiency of the petition is conclusive against col- 
lateral attack. Pittsburgh, etc., R. Co. v. Town of Crownpoint, 150 Ind. 5.36; Mc- 
Eneney V. ToAvn of SulHvan, 125 Ind. 407; Tucker v. Sellers, 130 Ind. 514; Board, %tc., 
V. Justice, 133 Ind. 89, 93; De Puy v. City of Wabash, 133 Ind. 336; Kiphart v. Pitts- 
burgh, etc., R. Co., 7 App. 122. 

Injunction proceedings— Only jurisdictional questions available.— An injunction 
suit to prevent the improvement of a street at the expense of the abutting owners, is a 
collateral attack upon the jurisdiction of the corporate officers, and only defects or ir- 
regularities affecting the jurisdiction can be made available. Questions as to the man- 
ner in which the work was done under the contract, and kindred questions, can not be 
considered in such suit, for they do not go to the jurisdiction. McEneney v. Town of 
Sullivan, 125 Ind. 407; Alley v. City of Lebanon, 146 Ind. 125; Elliott Roads and 
Streets, pp. 296, 440, 442. 

Notice to bidders — Assessment. — An assessment for a sidewalk improvement is not 
invalid because the notice to bidders, required by this section, w^as pubhshed in only 
one newspaper, when the ordinance provides for two, as the statute only requires pub- 
lication in one newspaper. City of Connersville v. Merrill, 14 App. 303. 

Notice of letting' contract— When sufficient. — A notice published May 25, June 1 
and June 8, that contract Avould be let June 16, is for three w^eeks and sufficient. It is 
not necessary that the last publication shall be three weeks before the time fixed for 
the letting of the contract. Bozarth v. McGillicuddy, 19 App. 26. 

When the notice given refers to the plans and specifications, which sufficiently de- 
scribe the proposed work, the notice will, by such reference, be made sufficiently defi- 
nite and certain, though this notice of itself does not specifically describe the work. 
Bozarth v. McGillicuddy, 19 App. 26. ee j.ewis v. Albertson, App. Ct., May 24, 1899. 

In a collateral attack upon an assessment the failure of the record to affirmatively 
disclose the proof of publication of notice does not show that the city proceeded with- 
out jurisdiction. City of Bloomington v. Phelps, 149 Ind. 596. 

Best bidder— Void award of contract.— The requirement that contracts for street 
improvements shall be awarded to the best bidder is violated b}^ the award of a contract 
containing provisions beneficial to the contractor not contemplated by the form of bid 
supplied to bidders, and which are substantially similar to the conditions incorporated 
in the bid of the bidder to whom the contract is awarded, although such conditions are 
stricken out before the acceptance of the bid. Wickwire v. City of Elkhart, 144 Ind. 
305. See 2 Beach Conts., § 1183, ee seg. 

Best bidder. — After the improvement is completed a property owner can not object 
to the proceedings on the ground that the contract for the improvement was awarded to 
one whose bid was slightly higher than another bid. City of Bloomington v. Phelps, 
149 Ind. 596. 

Council— Jurisdiction— City commissioners.— The common council has jurisdiction 
under this act to enter into a contract for the construction of a general sewer without 
first submitting the matter to the city commissioners for an appraisement of the bene- 
fits and damages to the property to be affected by the proposed improvement. The act 



§ 1108 CITIES AND towns/] 710 

of 1893 (R. S. 1894, §§ 4273-4275), has reference only to the proper mode of making 
the assessments after the contract has been made and the work completed. Alley v. 
City of Lebanon, 146 Ind. 125. 

Street within corporate limits— Presumption.— In the absence of proof to the con- 
trary it will be presumed that a street which the city or town authorities assume to im- 
prove is within the corporate limits of the city or town. Town of Woodruff Place v. 
Raschig, 147 Ind. 517. See Lewis v. Albertson, App. Ct., May 24, 1899. 

Street — Sidewalk — Improvement of part. — Under this section the common council 
can pave the whole or any part of either street or sidewalk it may deem beneficial to the 
public. Bozarth v. McGillicuddy, 19 App. 26. 

Construction of sewer by citj^— Trespass on abutting* land— Damag-es. —The power 
conferred upon the municipal corporation to construct a sewer along the street, does not 
authorize it to go beyond the limits of the street and enter upon abutting premises, nor 
to put earth upon such premises to the inconvenience and injury thereof; and for any 
such injury the contractors engaged in doing the work are liable in damages. Kinser 
v. Dewitt, 7 App. 597. 

Sewers— Damag'es for neglig'ent construction— Nuisance,— If deposits from a sewer 
constructed and maintained by a city cause peculiar injury to the owner of docks, by 
preventing or materially interfering with the accustomed and lawful use of such docks, 
the city is liable in damages. Peck v. City of Michigan City, 149 Ind. 670. 

Nuisance — Limitation of action.— Where a nuisance is of a character so permanent 
that it may fairly be said that the entire damage accrues in the first instance, the stat- 
ute of limitation begins to run at this time. On the other hand, where the nuisance is 
a continuing source of injury, there is a continuing right of action. Peck v. City of 
Michigan City, 149 Ind. 670. 

1108. Kesolution of necessity— Notice to objectors. — 2. Whenever 
cities or incorporated towns subject to the provisions of this act shall 
deem it necessary to construct any sewer, or make any of the alley or 
street improvements in this act mentioned, the council or board of 
trustees shall declare by resolution the necessity therefor, and shall 
state the kind, size, location and designate the terminal points thereof, 
and notice for ten days of the passage of such resolution shall be 
given for two weeks in some newspaper of general circulation pub- 
lished in such city or incorporated town, if any there be, and if there 
be not such paper, then in some such paper printed and published in 
the county in which such city or incorporated town is located. Said 
notices shall state the time and place, when and where the property 
owners along the line of said proposed improvement can make objec- 
tions to the necessity for the construction thereof. R. S. 1894, 
§ 4289. 

Resolution — Order of improvement— Jurisdiction. — The failure of the board or 
council in the resolution ordering the improvement to declare the necessity therefor 
does not affect the jurisdiction of the board or council to proceed with the improve- 
ment. When the improvement is ordered such order necessarily involves a determina- 
tion of the necessity for the work, and upon proper notice the board or council has 
jurisdiction to proceed with the improvement under such order. Pittsburg, etc., R. Co. 
v. Hays, 17 App. 261; Barber, etc., Co. v. Edgerton, 125 Ind. 455. 

Resolution of necessity — Notice.- The adoption by the common council of a resolu- 
tion of necessity under this section, and the causing of notice of same to be given are 
not essential to give jurisdiction where a notice and a hearing are given to the property 



711 STEEET IMPROVEMENTS. § 1108 

owner before the final assessment is made. Hughes v. Parker, 148 Ind. 692; Hart v. 
Parker, 148 Ind. 706. See Lewis v. Albertson, App. Ct., May 24, 1899; Willard v. Al- 
bertson, App. Ct., May 24, 1899. 

Substantial compliance with statute.— It is a substantial compHance with the statute 
for the common council to declare the necessity for the improvement in the same reso- 
lution ordering the improvement. Barber, etc., Co. v. Edgerton, 125 Ind. 455; Quill v. 
City of Indianapolis, 124 Ind. 292. 

Eesolution or ordinance. — The order for the improvement may be either a resolu- 
tion or an ordinance. Sands v. Hatfield, 7 App. 357; Merrill v. Abbott, 62 Ind. 549. 

The order entered by a common council for a particular improvement is a mere pre- 
liminary step from which it may recede at any time before the contract for the improve- 
ment is concluded. Barber, etc., Co. v. Edgerton, 125 Ind. 455. 

Passag'e of resolution— Yeas and nays. — Failure to enter yeas and nays on the 
record showing passage of resolution upon which improvements are made under this 
statute does not render proceedings void. New Albany, etc., Co. v. Crumbo, 10 App. 
360. 

Notice — Not imperative. — While this section provides for the giving of notice of the 
time and place where objections may be made to the necessity of the improvements, 
such notice is not imperative. This question may be determined by the council without 
notice to the property owner who is to be affected by such improvement, but notice of 
the intention to make the assessment upon the property must be given. Bozarth v. 
McGillicuddy, 19 App. 26; Barber, etc., Co. v. Edgerton, 125 Ind. 455. See Lewis v. 
Albertson, App. Ct., May 24, 1899; Willard v. Albertson, App. Ct., May 24, 1899. 

"Due process of law" — Notice. — A law which authorizes an assessment against prop- 
erty, but makes no provision for notice to the owner, and gives him no opportunity to 
be heard in respect to the correctness of the charge lacks the essential element of "due 
process of law," and is unconstitutional. Garvin v. Daussman, 114 Ind. 429, 432; 
Kuntz V. Sumption, 117 Ind. 1, 2; McEneney v. Town of Sullivan, 125 Ind. 407, 409; 
Barber, etc., Co. v. Edgerton, 125 Ind. 455, 463; Elliott Roads and Streets, pp. 151, 154. 

The notice and hearing which the constitution demands need only be such as are 
adapted to the nature of the assessment proposed, and such as afford the property 
owner an opportunity to show that, according to the method prescribed for making the 
assessment, the amount charged against him is not correct. Garvin v. Daussman, 114 
Ind. 429, 432; Law v. Johnston, 118 Ind. 261, 263. 

Proceedings for street improvements, where the cost is to be apportioned among those 
benefited, although somewhat of a summary character, are within the rule which re- 
quires notice and a hearing in order that a charge may be imposed by "due process of 
law." Garvin v. Daussman, 114 Ind. 429, 434. 

Notice. — The notice required by this section is to be published for two weeks, ten 
days prior to the time fixed for making objections to the proposed improvement. Quill 
V. City of Indianapolis, 124 Ind. 292. 

The finding of a court as to notice need not state date of insertion in newspaper nor 
length of publication. Dugger v. Hicks, 11 App. 374. 

Same^-Non-liability. — A land-owner is not liable for an improvement of a street on 
which his land abuts, where no notice of such improvement was given by publication 
or otherwise. Stephenson v. Town of Salem, 14 App. 386. 

The legislature has the power to fix the kind of notice and the manner in which it 
shall be given. Klein v. Tuhey, 13 App. 74; Swain v. Fuhner, 135 Ind. 8; McEneney 
V. Town of Sullivan, 125 Ind. 407; Barber, etc., Co. v. Edgerton, 125 Ind. 455; 
2 Dillon Munic. Corp., 4th ed., § 802a; Elliott Roads and Streets, p. 153. 

Proceeding's — When sufficient. — When the declaratory resolution and notice thereof, 
and the notice to contractors, and the contract itself, each stated that the streets and 
sidewalks to be improved were in the town of Dunkirk, Ind., and neither the ordinance 
nor judgment foreclosing the lien in direct terms stated that the improvement was within 
the corporate limits, but it did appear that the property assessed abutted upon the 



§ 1109 CITIES AND TOWNS. 712 

street named in the proceedings for improvement, it safficiently appeared that the prop- 
erty assessed was within the corporate limits, Pittsburgh, etc., R. Co. v. Hays, 17 App. 
261. 

Ordinance, when sufficient. — An ordinance for a street improvement is not defec- 
tive on the ground that the nature and extent of improvements are not shown, when 
the specifications in it require that the street shall be graveled and guttered according 
to stakes set by the town civil engineer, to a width and depth specified in the ordinance, 
with the best quality of raked river gravel, and the sidewalks graded to a specified 
width and graveled to a specified depth with the best quality of sidewalk gravel, and 
the gutter of each side of the street to be hammered dressed stone, gutter to be four feet 
wide and seven inches deep, all work to be done to the entire satisfaction of the town 
civil engineer. Dugger v. Hicks, 11 App. 374. 

A recital in an ordinance that the same was passed by a two-thirds vote of the board 
amounts to a finding that the same was passed by a two-thirds vote and such finding is 
conclusive against collateral attack. Pittsburgh, etc., R. Co. v. Town of Crown Point, 
150 Ind. 536; City of Indianapolis v. Consumers', etc., Co., 140 Ind. 246. 

Ordinance — Material.— An ordinance for a sidewalk improvement is not invalid for 
uncertainty because it provides that the improvement thereby made shall be made of 
such one of three kinds of stone enumerated therein, as shall be determined by the 
common council on reception of bids. City of Connersville v. Merrill, 14 App. 303. 

Remonstrance — Estoppel. — The appearance of a land-owner to protest against the 
improvement of one street, will not estop him from disputing the right of the town 
trustees to improve another street. Stephenson v. Town of Salem, 14 App. 386. 

Objections — i^otice filed with clerk.— This section contemplates that no action shall 
be taken by the common council after resolving to make the improvement, until notice 
is given, and an opportunity afforded the property owners to present for the considera- 
tion of the council such objections as they may make to the necessity for the construc- 
tion of the work. This object is accomplished by requiring objections to be filed with 
the clerk, to be bj^ him laid before the council. The appointment of a committee to 
hear the objections is not required. Quill v. City of Indianapolis, 124 Ind. 292. 

1109. Apportionment of costs — Liens — Sale. — 3. In all contracts 
specified in the preceding section the cost of any street or alley im- 
provement shall be estimated according to the whole length of the 
street or alley, or the part thereof to be improved per running foot, 
and the costs of any such sewer shall be apportioned among the 
lands, lots and parts of lots, benefited thereby, and according to such 
benefits without regard to the assessment for taxation of such property, 
and the city or incorporated town shall be liable to the contractor for 
the contract price of said improvement, and the owners of lots or parts 
of lots bordering on such street or alley, or the part thereof to be im- 
proved, or of the lots or parts of lots benefited by the construction of 
such sewer, shall be liable to the city for the proportion of the costs 
in the ratio of the front line of their lots owned by them to the whole 
improved line for street and alley improvements, and for the construc- 
tion of such sewer for the benefit of such lots or parts of lots thereb}^ 
and the city or incorporated town shall have a lien upon such lots or 
parts of lots, respectively, from the time such improvement is ordered, 
for such costs of improvement, collectible as hereinafter provided, and 
in all cases where such improvement shall have been made, or may 
hereafter be made on any street or alley running along or through any 



713 STREET IMPROVEMENTS. § 1109 

unplatted lands lying within the corporate limits of such city or in- 
corporated town, the cost of such improvement shall be estimated ac- 
cording to the whole length of the street or alley, or the part thereof 
to be improved per running foot, and the owners of such unplatted 
lands bordering on such street or alley or the part thereof to be im- 
proved shall be liable to the contractor for their proportion of the cost, 
in the ratio of the front lines of such unplatted lands owned by them 
to the whole improved line; and in making the assessment against 
such owners for the improvement of such lots or parts of lots and un- 
platted lands shall be assessed upon the ground fronting or immedi- 
ately abutting on such improvement back to the distance of one hun- 
dred and fifty feet from such front line, and the city or incorporated 
town and the contractor shall have a lien thereon for the value of such 
improvement: Provided, however ^ That where such land is subdivided 
or platted the land lying immediately upon and adjacent to the line of 
the improvement and extending back fifty feet shall be primarily lia- 
ble to and for the whole cost of the improvement, and, should that 
prove insufficient to pay such cost, then the second parcel and other 
parcels in their order to the rear parcel of said one hundred and fifty 
feet shall be liable in their order. Such assessments, with the interest 
accruing thereon, shall be a lien upon the property so assessed and 
shall remain a lien until fully paid, and shall have precedence over 
all other liens, excepting taxes, and shall not be divested by any judi- 
cial sale, and if such city or incorporated town shall fail, neglect or 
refuse to promptly enforce and collect such assessment when due, the 
owner or holder of any of the bonds or certificates hereinafter men- 
tioned may foreclose such lien or liens as a mortgage is foreclosed in 
any court of competent jurisdiction, and shall recover in addition to the 
amount of said bonds and interest and all costs, a reasonable attor- 
ney's fee. The amount realized by the sale of any such property, or 
the payment of such assessment after the payment of the costs of 
such proceeding shall, to the extent of such assessment, with interest 
thereon, be applied pro rata to the payment of the then outstanding 
bonds or certificates herein mentioned without reference to the time of 
the maturity of the bonds or certificates. Any mistake in the descrip- 
tion of the property or in the name of the owner shall not vitiate the 
lien of such assessment. Such city or town shall be liable and pay 
for all that part of such street or alley improvement as shall be occu- 
pied by the street and alley crossings, and may order that any part of 
the total cost of any of the improvement in this act mentioned shall 
be paid out of the general fund. R. S. 1894, § 4290. 

Apportionment of cost according* to benefits. — Improvements under this statute 
should be paid for by the owners of property specially benefited thereby. An assess- 
ment for a public sewer made under the statute relating to sidewalks, and placing the 
assessment not according to benefits, but according to lineal measurement of the prop- 
erty fronting on the sewer, is void. Crawfordsville, etc., Ass'n v. Clements, 12 App. 
464. 

Assessment — Direct attack — Estoppel. — A }>roperty owner has a right to assume 
that his property will be assessed at least under color of the statute, and where the 



§ 1109 CITIES AND TOWNS. 714 

remedy sought is not a collateral attack but a direct proceeding attacking the assess- 
ment, there is no estoppel. Crawfordsville, etc., Ass'n v. Clements, 12 App. 464. 

Order of liability — Lots within 150 feet. — Under this act assessments for street im- 
provements can only be made against lots bordering upon the street, and the liability 
of other lots within 150 feet of the street improved arises only in the event that the 
bordering lot, against which the whole assessment must be levied, fails to sell for a sum 
sufficient to pay the assessment, and then only for the deficit, in the order fixed by the 
statute. City of Terre Haute v. Mack, 139 Ind. 99 ; Town of Woodruff v. Easchig, 147 
Ind. 517; Bozarth v. McGillicuddy, 19 App. 26. 

The act of the engineer in apportioning a part of the cost of a street improvement 
upon a non-bordering lot, and the city common council in assessing such amount against 
such lot are void, and the collection will be enjoined. City of Terre Haute v. Mack, 
139 Ind. 99. 

Waiver — Property secondarily liable.— The waiver signed by the abutting property 
owner in no way affects the rights or liabilities of persons whose property is only sec- 
ondarily liable. Cleveland, etc., R. Co. v. Edward C. Jones Co., 20 App. 87. 

In order to make the whole of the first 50 feet primarily liable, it is necessary that 
one person should own the whole of the first 50 feet ; if two persons each own 25 feet of 
the first 50 feet, the 25 feet abutting the improved street is primarily liable, and the sec- 
ond 25 feet should be taken only in the event the first is insufficient to satisfy the lien. 
This secondary liability extends back from the street a distance of 150 feet. City of 
Terre Haute v. Mack, 139 Ind. 99; Cleveland, etc., R. Co. v. Edward C. Jones Co., 20 
App. 87. 

Parties — Complaint. — The abutting owners and those owning lots within the limit of 
150 feet, may be joined as defendants in the same complaint. Cleveland, etc., R..Co. 
V. Edward C. Jones Co., 20 App. 87. 

Assessment— Quieting" title— Injunction.— The title to no part of the first one hun- 
dred and fifty feet back from the street under improvement can be quieted against the 
assessment until the same is paid ; but where there are several succeeding parcels 
within the one hundred and fifty feet, the collection of the assessment against any rear 
parcel may be enjoined until the front parcel or parcels are first exhausted. Town of 
Woodruff Place v. Easchig, 147 Ind. 517 ; City of Terre Haute v. Mack, 139 Ind. 99. 

In order that the whole of the first fifty feet back from the front shall be equally 
liable, it must be owned by one person. City of Terre Haute v. Mack, 139 Ind. 99; 
Bozarth v. McGillicuddy, 19 App. 26. 

First and subsequent improvement— Priority of liens.— Every improvement made 
increases the security for the payment of assessments previously made, and, therefore, 
it follows that the last assessment for such improvement must take precedence, as a 
lien, over those previously made. Burke v. Lukens, 12 App. 648. 

Assessment lien superior to mortg'ag'e lien.— The assessment hen for improvement 
is superior to a mortgage lien prior in date. This is upon the theory that the security has 
been enhanced in proportion to the am^ount of the improvement lien. City of Bloom- 
ington V. Phelps, 149 Ind. 596; Elhott Eoads and Streets, p. 433. 

City's liability— Secondary.— It is not the purpose of the statute to charge, primarily, 
the cost of the street improvements against the city. The city's liability is but sec- 
ondary, and arises only when it has sold bonds, collected assessments, or otherwise re- 
alized the amounts owing from the property benefited, and the contractors have not 
been paid. Porter v. City of Tipton, 141 Ind. 347; Quill v. City of Indianapolis, 124 
Ind. 292; Eobinson v. City of Valparaiso, 136 Ind. 616; City of Huntington v. Force, 
Ind. Sup. Ct., April 4, 1899. 

Same— Crossing's—Indebtedness.— The corporation is liable to pay in cash the ex- 
pense for so much of the street and alley improvements as shall be occupied by street 
and alley crossings. Such liability is to be paid in cash upon the completion of the 
work and final estimate ; this being so no debt results on that account. Quill v. City 
of Indianapohs, 124 Ind. 292, 301. 



715 STREET IMPROVEMENTS. § 1110 

A mnnicipal corporation is liable for its proportion of the cost of local improvements 
assessed against it even though the statute exempts public property from taxation. 
Warner v. City of New Orleans, 172 U. S. 648. 

Land reserved for fence.— A strip of land two feet in width, abutting upon a street, 
reserved in the plat for the location of a fence to be held as the private property of the 
owners of the several lots in the town, collectively, can not be sold for the improve- 
ment of the roadway of the street. Town of Woodruff v. Raschig, 147 Ind. 517. 

Constitutionalit J'— Waiver upon appeal.— Where a railroad company appealed to 
the appellate court from a judgment declaring a lien on its right of way for an assess- 
ment for improvement of street, by failure to duly present the question of the constitu- 
tionality of the statute upon the original hearing such question was waived, and the 
appellant could not, thereafter, upon a petition for rehearing present that question for 
the purpose of defeating the jurisdiction of the court. Pittsburgh, etc., R. Co. v. Hays, 
17 App. 261. 

Assessment— Bonds — Complaint to foreclose.— The proceedings of the common 
council and the assessment are the basis of an action to foreclose, not the bonds which 
have been issued to the contractor. The rights of the assignee of the bonds are no 
greater than those of the contractor. In either case, in a suit to foreclose the lien a 
complaint which omits the averment that an assessment was made is bad. The com- 
plaint should show that the municipality has taken the necessary steps to fix the lien 
upon the lots. Cleveland, etc., E. Co. v. Edward C. Jones Co., 20 App. 87. 

Assessment liens— Eedemption from sale— Recovery of redemption money.— 
Where a judgment foreclosing an assessment lien for street improvements is set aside 
as void, money paid by the property owner in redeeming the property from such fore- 
closure sale pending the action to set aside the judgment is not a voluntary payment, 
and may be recovered. Keene v. McGillicuddy, 19 App. 427. 

1110. Allowance to owner who has improved — Bonds. — 4. When- 
ever the owner of any lot or part of a lot, before the letting of such 
contract, shall have made any improvement in front of his lot or part 
of a lot, in accordance with the general plan for the improvement of 
such street or alley, and under the direction of the city or town en- 
gineer, he shall be entitled to a reasonable allowance therefor upon 
his proportion of the cost of such improvement, which reasonable 
allowance shall be determined by said engineer: Provided, That the 
common council of such city, or board of trustees of such incorporated 
town, may require all contractors for street and sewer improvements 
to give bonds, with good and sufficient freehold surety, for the faithful 
performance of the work, and that all contracts made by any city or 
incorporated town, or by any officer under the authority thereof, for 
public improvements or otherwise, in the profits whereof any officer 
shall be interested, directly or indirectly, shall be void: And provided 
further, That after receiving bids for the improvement of any street or 
alley, or the construction of any sewer, as aforesaid, and in case all 
such bids are rejected as unsatisfactory by reason of the bids being for 
too great a price, or the bidder failing to give a satisfactory bond, or 
for any other cause deemed sufficient by such common council or board 
of trustees, then, and in such case, the common council of any city, 
or the board of trustees of any incorporated town, may order the work 
to be done by the street commissioner of such city or the marshal of 
such town; but in such case the total cost of the work to be assessed 



§ 1111 CITIES AND TOWNS. 716 

against the property owners, shall not be in excess of the lowest re- 
sponsible bid for said work, w^hich cost shall be assessed and collected, 
and bonds may be issued therefor, as provided in case of the letting of 
the work by contract, or the council or board of trustees may in such 
case re-advertise for bids for said work. [As amended, Acts 1891, p. 
323. In force March 6, 1891.] R. S. 1894, § 4291. 

Amendment — Effect. — This section as amended takes the place of the original. All 
the provisions of the act are to be construed together. Robinson v. City of Valparaiso, 
136 Ind. 616. 

Improvement by owner — Allowance. — The property owners are entitled to a reason- 
able allowance, to be determined by the engineer, for improvements made by them, as 
provided by this section. City of Connersville v. Merrill, 14 xVpp. 303, 307. 

1111. Estimates — How paid — Lieus.— 5. When any such contract 
shall be made, or shall have been heretofore made, and shall have 
been in progress of fulfillment, the common council of such city or the 
board of trustees of such town shall have power to cause estimates to 
be made from time to time of the amount of work done by the con- 
tractor, and to cause the same to be paid out of the treasury, deducting 
a reasonable amount of percentage to secure the completion of the con- 
tract, until the whole shall be finished, and to prescribe the time in 
which the whole shall be completed, and such estimates shall be a lien 
upon the several parcels of ground upon which they are assessed to 
the same extent that taxes are a lien, and shall have the same prefer- 
ences over other demands, and such liens shall be in favor of the city 
or incorporated town, and the owner of the certificate or bonds here- 
inafter mentioned to secure to the city or incorporated town and such 
owners the reimbursement for such cost of improvement hereinafter 
provided for. The common council of such city or the board of 
trustees of such town, wdth the concurrence of two-thirds of the mem- 
bers thereof, may order or cause any or all of the improvements men- 
tioned in the first section^ of this act, and repairs of any kinds of streets 
and alleys to be made in like manner, without such petition, and either 
charge and cause any or all of the expenses thereof to be assessed and 
collected, as hereinafter provided, w^hen petition is made, or if it is 
deemed just and right by the common council of such city or the 
board of trustees of such town to cause such expenses, or any part 
thereof, to be paid out of the general revenue of the city or incorporated 
town. R. S. 1894, § 4292. 

Statute construed — Foreclosure by city. — The remedy given hereafter in this act for 
the collection or foreclosure of liens of assessments for sidewalk improvements is 
available to the city, although the improvement is not made on petition. City of Con- 
nersville V. Merrill, 14 App. 303; City of Lafayette v. Fowler, 34 Ind. 140. 

Improvement without petition. — Improvements may be made by a tv/o-thirds vote 
of the council or board of trustees, without a petition being filed. McEneney v. Sulli- 
van, 125 Ind. 407; Keith v. Wilson, 145 Ind. 149; Be Puy v. City of Wabash, 133 Ind. 
336. 

Money advanced by a city — Not a debt. — Moneys advanced to contractors by the 
city or town under this section is not such an indebtedness as is prohibited by the con- 



717 STREET IMPROVEMENTS. § 1112 

stitution when the debts of a city or town amount to the Hmit allowed. Quill v. City of 
Indianapolis, 124 Ind. 292. 

1112. Final estimate of costs — Eeport of engineer. — 6. When any 
such improvement has been made and completed according to the 
terms of the contract therefor made, the common council of such city, 
or the board of trustees of such town, shall cause a final estimate of 
the total cost thereof to be made by the city or town engineer, and 
the common council of such city, or the board of trustees of such 
town shall require said cit}^ or town engineer to report to the common 
council of such city or the board of trustees of such town the follow- 
ing facts touching said improvement: First. The total cost of said 
improvement. Second. The average cost per running front foot of 
the whole length of that part of the street or alley so improved. Third. 
The name of each property owner on that part of the street or alley so 
improved. Fourth. The number of front feet owned by the respective 
property owners on that part of said street so improved. Fifth. The 
amount of such cost for improvement due upon each lot or parcel of 
ground bordering on said street or alley, which amount shall be ascer- 
tained and fixed by multiplying the average cost price per running 
front foot by the number of running front feet of the several lots or 
parcels of ground respectively. Sixth. The full description, together 
with the owner's name, of each lot or parcel of ground bordering on 
said street so improved. Seventh. In the case of the construction of a 
sewer, a description of each lot or parcel of lot benefited thereby, to- 
gether with the owner's name and the fair proportion of the cost of 
such sewer according to the benefits conferred thereby, that should be 
assessed against such lot or part of a lot. R. S. 1894, § 4293. 

Eng'ineer's report — Assessment. — The assessment of the cost of the improvement 
must be made upon each lot or parcel of ground separately. An assessment made in a 
gross sum jointly against two or more lots or parcels is voidable and does not create 
a lien and can not be enforced. Becker v. Baltimore, etc., R. Co., 17 App. 324; Balfe v. 
Johnson, 40 Ind. 235; Reeves v. Grottendick, 131 Ind. 107. See Lewis v. Albertson, 
App. Ct., May 24, 1899. 

Description, — The assessment should not be held void or invahd if it sufficiently 
identifies the lot so that it might be found and located by a competent surveyor ; but 
where the land assessed is described, ''Tract of land, north side, between Front St. 
and O. & M. R. R.," the description is insufficient. Becker v. Baltimore, etc., R. Co., 
17 App. 324. 

An assessment against 163 feet of a lot described by number in a certain addition is 
sufficiently definite and certain. Richcreek v. Moorman, 14 App. 370. 

Estimate-^Assessment— Coi'rection. — A final estimate or assessment may be cor- 
rected by the common council or board of trustees. Becker v. Baltimore, etc., R. Co., 
17 App. 324; Balfe v. Johnson, 40 Ind. 235; Ball v. Balfe, 41 Ind. 221; Sands v. Hat- 
field, 7 App. 357; McGill v. Bruner, 65 Ind. 421 ; Goring v. McTaggart, 92 Ind. 200. 

The estimate for improvements can not be increased at the stage of issuing and mar- 
keting bonds. Porter v. City of Tipton, 141 Ind. 347. 

Assessments— Benefits.— Assessments for street improvements are upheld on the 
ground that the adjacent property is enhanced in value the amount of the cost of the 
improvement. Quill v. City of Indianapolis, 124 Ind. 292 ; Lipes v. Hand, 104 Ind. 503 : 
Barber, etc., Co. v. Edgerton, 125 Ind. 455; City of New Albany v. Cook, 29 Ind. 220; 
Ross V. Stackhouse, 114 Ind. 200; Norwood v. Baker, 172 U. S. 269; ElUott Roads and 
Streets, p. 369, et seq. 



§ 1113 CITIES AND TOWNS. 718 

Sewer estimates. — The engineer's estimate under this section when a sewer has been 
constructed need only contain such data as apply to sewer improvements, viz., data 
under first and seventh subdivisions. New Albany, etc., Co. v. Crumbo, 10 App. 360. 

Sewer assessment— When void. — An assessment for a public sewer made under the 
statute for street improvements, and placing the assessment not according to the bene- 
fits received, but according to the lineal measurement of the property fronting on the 
sewer, is void. Crawfordsville, etc., Ass'n v. Clements, 12 App. 464. 

Part of lot not abutting-- Bridg'e.— An abutting property owner is not assessable for 
that part of his property which abuts upon a portion of the street which is not improved, 
and where the lot abuts upon a bridge which is not improved, the part of the lot abut- 
ting on bridge can not be assessed. Town of Salem v. Henderson, 13 App. 563. 

1113. Notice of hearing — Assessments — Liens — Payment in install- 
ments. — 2. [7.] Upon the filing of the report provided for in the 
last preceding section, the common council of such city, or the board 
of trustees of such tov^n, shall give two wrecks' notice in a newspaper 
printed and published in such city or incorporated towm, if any there 
be, and if there be no such paper, then in a newspaper printed and 
published in the county in which such city or incorporated town is 
located, of the time and place, when and wdiere, a hearing can be had 
upon such report, before a committee to be appointed to consider such 
reports, and such committee shall make report to the common council 
of such city, or the board of trustees of such town, recommending 
the adoption or alteration of such report, and the common council of 
such city or the board of trustees of such town may adopt, alter or 
amend such report and the assessments therein. Any person feeling 
aggrieved by such report shall have the right to appear before such 
committees and the common council of such city or the board of trus- 
tees of such town, and make objection thereto, and shall be accorded 
a hearing thereon, and the common council of such city or the board 
of trustees of such town, shall assess against the several lots or par- 
cels of ground the several amounts which shall be assessed for and 
on account of such improvements, which said amounts shall bear in- 
terest at the rate of five per cent, per annum from the time of finding 
of the completion of said improvements by the common council or 
board of trustees, as mentioned in § 6 of this act. The owner of any 
lot or parcel of ground against w4iich said assessment is made, may, 
if he, v/ithin two weeks after the making of such assessments, shall 
promise and agree, in writing, to be filed with the clerk of such city 
or town and to be spread of record by him in consideration of the 
right to pay his or their assessment, or respective assessments in in- 
stallments, that he will not make any objections to any illegality 
or irregularity as to their respective assessments, and will pay the 
same, with interest thereon, at the rate of not exceeding five per 
centum per annum, as shall by ordinance or resolution of the com- 
mon council of such city, or board of trustees of such tov/n, be pre- 
scribed and required, he shall have the benefit of paying said assess- 
ments in ten annual installments, as hereinafter provided. Any 
owner of any lot who has been assessed, who will not promise and 



719 STREET IMPROVEMENTS. ^ § 1113 

agree in writing as herein provided, shall be required to pay his or 
their assessment in full when made, and the same may be collected 
according to the provisions of amended section ten of this act, or the 
contractor or his assigns may foreclose such assessment as a mortgage 
is foreclosed in any court of competent jurisdiction, and shall recover 
in addition to the amount of such assessment, with interest, all costs, 
and a reasonable attorney's fee. Whenever any payment shall be 
made upon any of such assessments, it shall be the duty of the treas- 
urer, contractor or owner of the assessments, bonds, or certificates or 
installments of assessments, as hereinafter provided, receiving such 
payment, to enter upon the proper record the receipt of such money, 
and such receipt shall be a discharge of the lien of such assessment to 
the extent of such payment, and upon the payment of any bonds or 
certificates as are issued under this act they shall be surrendered to 
and cancelled b}^ the treasurer, when bonds have been requested as 
aforesaid, then the common council of such city or board of trustees 
of such town shall cause the said assessment and bonds requested 
therefor to be placed upon the city or incorporated town tax 
duplicate and charged against the several lots or parcels of ground 
as follows: ten per cent, for each successive year for ten years, to 
which several amounts shall be added and placed on the duplicate, 
interest at five per cent, per annum, payable semi-annually, which 
shall be calculated from the time of the acceptance of the work by 
the common council or board of trustees, until the several allow- 
ances fall due; and the first ten per cent, shall be due and payable 
when the first tax falls due, and is payable after such assessment is 
made; and said assessment, as made, together with the interest thereon, 
shall be a lien upon the several lots or parcels of ground to the same 
extent that taxes are a lien upon such property, and shall be collecti- 
ble in the same way that taxes are collectible, together with such pen- 
alty for the non-payment of any assessment, or installment when due 
as is now provided by law for the collection of delinquent taxes, or in 
such manner as the common council or board of trustees, by ordi- 
nance, shall prescribe and the law governing the collection of taxes 
shall so far as the same is applicable, regulate and govern the collec- 
tion of such assessment; and such assessment, and the proceeds aris- 
ing therefrom, shall constitute a special fund for the payment of the 
cost of such street, alley and sewer improvement and the bonds and 
certificate hereinafter mentioned, and for no other purpose. [As 
amended. Acts 1899, p. 63. In force February 17, 1899.] R. S. 1894, 
§ 4294. 

The decisions following were prior to amendment of 1899 : 

Construction of statute. — This section as amended takes the place of the original. 
All the provisions of the act are to be construed together. Robinson v. City of Val- 
paraiso, 136 Ind. 616. 

Notice. — Property owners have the right to notice and to be heard upon the question 
of benefit to their property by the improvement, and this section provides for such a 
notice and hearing, and is not subject to objection on that account. Barber, etc., Co. 



§ 1113 CITIES AND TOWNS. 720 

V, Edgerton, 125 Ind. 455 ; McEneney v. Town of Sallivan, 125 Ind. 407 ; Bozarth v. Mc- 
Gillicuddy, 19 App. 26. 

The finding of a court as to notice need not state date of insertion in newspaper nor 
length of pubhcation. Dagger v. Hicks, 11 App. 374. 

The notice provided for in this section gives the lot-owner an opportunity to be heard 
in respect to the correctness of the charge against his property. Mere irregularities 
prior to such assessment will not render it void. Sands v. Hatfield, 7 App. 357. 

Lien for assessment — Notice. — ISotice at some stage of the proceedings prior to a 
conclusive judgment is requisite in order to authorize the subjection of property to a 
special lien for a local assessment. McEneney v. Town of Sullivan, 125 Ind. 407, 409; 
Garvin v. Daussman, 114 Ind. 429; Law v. Johnston, 118 Ind. 261; Kuntz v. Sumption, 
etc., 117 Ind, 1; Barber, etc., Co. v. Edgerton, 125 Ind. 455; Elliott Roads and Streets, 
pp. 151, 242. 

Notice— Void assessment— Collateral attack.— The statute as to notice of the assess- 
ment must be substantially complied with, or the assessment will be void, notice being 
necessary to give jurisdiction of the property and the person of the ow^ner, and conse- 
quently, to the validity of the lien, etc. When the assessments are void, they are sub- 
ject to collateral attack, but where some notice has been given, and the tribunal mak- 
ing the assessment determines that the notice is sufficient, the property owner will not, 
as a rule, be permitted to attack such proceedings collaterally. Kiphart v. Pittsburg, 
etc., R. Co., 7 App. 122; McEneney v. Town of Sullivan, 125 Ind. 407. See Lewis v. 
Albertson, App. Ct., May 24, 1899. " 

Notice of time and place for hearing objections to assessments for improvements, 
signed by the city clerk, which shows, upon its face, that it was ordered by the council, 
is clearly the council's notice and is sufficient. Klein v. Tuhey, 13 App. 74; Catterlin 
v. City of Frankfort, 87 Ind. 45. 

The legislature has the power to fix the kind of notice and the manner in w^hich it 
shall be given. Klein v. Tuhey, 13 App. 74; Swain v. Fulmer, 135 Ind. 8; McEneney v. 
Town of Sullivan, 125 Ind. 407; Barber, etc., Co. v. Edgerton, 125 Ind. 455; 2 Dillon 
Munic. Corp., 4th ed., § 802a. 

Publication of notice on September 2, 1892, and upon each day thereafter, except 
Sundays, up to and including September 16, the day appointed for hearing objections 
to assessments, is two full weeks' publication and is sufficient. A general notice that 
the engineer's report has been made, and that a hearing will be had thereon at a speci- 
fied time and place, is sufficient, without special notice to the land-owner Klein v. 
Tuhey, 13 App. 74; Swain v. Fulmer, 135 Ind. 8; Murphy v. Beard, 138 Ind. 560. 

Engineer's estimate— Amendment of. — Upon the final hearing the council has power 
to alter or amend the engineer's estimate and report so as to include omitted property. 
Sands v. Hatfield, 7 App. 357. 

Increasing" estimate. — The estimates for improvements can not be increased at the 
stage of issuing and marketing bonds. Porter v. City of Tipton, 141 Ind. 347. 

Assessment of benefits— Action of council conclusive. — The question of benefits to 
property in a city from the construction of a sewer having once been passed upon by 
the council, no other court or tribunal has any power to review or pass upon it, except 
for fraud. Klein v. Tuhey, 13 App. 74; Crawfordsville, etc., Ass'n v. Clements, 12 
App. 464; City of Ft. Wayne v. Cody, 43 Ind. 197; Robinson v. City of Valparaiso, 136 
Ind. 616. 

Approval of estimate — Assessment.— When the engineer's estimate is approved and 
adopted by the city council it becomes the assessment, and direction of the council to 
the city clerk to prepare an assessment accordingly is not a delegation of authority. 
New Albany, etc., Co. v. Crumbo, 10 App. 360. 

Assessments — How paid. — A city assumes no obligation to pay for the construction 
of a sewer, but the same is to be paid for out of assessments on the property benefited 
thereby. Robinson v. City of Valparaiso, 136 Ind. 616 ; City of New Albany v. McCul- 



721 STREET IMPROVEMENTS. § 1113 

loch, 127 Ind. 500; Quill v. City of Indianapolis, 124 Ind. 292; Porter v. City of Tipton, 
141 Ind. 347. 

Estoppel. — Property owners can not stand by while an improvement contract is be- 
ing executed, and then deny the propriety of the work or object to the manner of its 
execution or deny the sufficiency of the notice. Robinson v. City of Valparaiso, 136 
Ind. 616; De Puy v. City of Wabash, 133 Ind. 336; New Albany, etc., Co. v. Crumbo, 
10 App. 360; Jenkins v. Stetler, 118 Ind. 275; Ross v. Stackhouse, 114 Ind. 200; Wiles 
V. Hoss, 114 Ind. 371; Clements v. Lee, 114 Ind. 397; Taber v. Ferguson, 109 Ind. 227; 
City of Logansport v. Uhl, 99 Ind. 531; Hiatt v. Town of Darhngton, Ind. Sup. Ct., 
May 19, 1899; Lewis v. Albertson, App. Ct., May 24, 1899; Elliott Roads and Streets, 
pp. 418-423. 

Defenses— Counter claim— Answer in bar.— The fact that the work was not done 
according to contract is not a matter of counter claim ; if such fact can be inquired into 
at all, in an action to foreclose the lien of the assessment, it must be on answer in bar. 
Bozarth v. McGilhcuddy, 19 App. 26; Darnell v. Keller, 18 App. 103. 

Collection of assessments — Two methods.— The statute provides two methods of 
collecting assessments, one according to the provisions of section 10 (R. S. 1894, § 4298), 
the other by foreclosure, as a mortgage is foreclosed, in any court of competent jurisdic- 
tion. Bozarth v. Mallett, 11 App. 417; Bozarth v. McGillicuddy, 19 App. 26. 

Foreclosure — Complaint. — A complaint to foreclose an assessment must contain a 
copy of the assessment roll, or at least that portion of it which relates to the property 
affected by the lien, or such copy should be made an exhibit to the complaint. Sloan 
V. Faurot, 11 App. 689; Van Sickle v. Belknap, 129 Ind. 558. 

Exhibits. — The order or resolution for the improvement though filed as an exhibit 
can not be looked to to aid any defective averments of the pleading in foreclosing an 
assessment lien, Bozarth v. Mallett, 11 App. 417 ; Fuller v. Cox, 135 Ind. 46 ; Dugger 
V. Hicks, 11 App. 374, See Lewis v. Albertson, App. Ct., May 24, 1899, 

Complaint by assig'nee. — A complaint by the assignee of an assessment in a suit to 
foreclose, must, to be good, show an assignment to plaintiff. Bozarth v. Mallett, 11 
App, 417, 

Description. — The property assessed must be so described in the complaint that it 
could be located or surveyed or the complaint will be bad. Lake Erie, etc, R. Co. v. 
Walters, 9 App. 684, 

As to sufficiency of description in the assessment, see Richcreek v. Moorman, 14 
App. 370; Becker v. Baltimore, etc., R, Co,, 17 App. 324. 

Assessment liens— Redemption from sale— Recovery of redemption money.— Where 
a judgment foreclosing an assessment lien for street improvements is set aside as void, 
money paid by the property owner in redeeming the property from such foreclosure 
sale pending the action to set aside the judgment is not a voluntary payment, and may 
be recovered, Keene v, McGillicuddy, 19 App. 427. 

Assessment for street improvement.— The question whether a city is liable for its 
proportion of cost of a street improvement, when it is already indebted beyond the con- 
stitutional limit, does not affect the liability of a property-holder in a suit to enforce 
payment of his share of the assessment. Hughes v. Parker, 148 Ind. 692, 

Where, in an action to enforce a street assessment lien against the right of way of a 
railroad company, the complaint only described the property as " a strip of ground one 
hundred and thirty-four feet long, abutting on North Main street, between Broadway 
and North streets," such description is insufficient and renders the complaint bad. the 
land not being capable of being located or surveyed from such description. Lake Erie, 
etc., R, Co. V. AValters, 9 App. 684, 687. 

Precept not necessary under foreclosure— Nor issuance of bonds.— Fnder this sec- 
tion in the foreclosure of a street assessment lien, it is not required that a contractor, 
nor any one for him, shall file with the city clerk, nor the counuon council of the city, 
an affidavit for a precept to collect assessments ; nor is it required that any bonds or 

CiT. AND To.— 46 



§ 1113 CITIES AND TOWNS. 722 

certificates for or on account of the alleged improvement of the real estate, be issued. 
Bozarth v. McGillicuddy, 19 App. 26; Bozarth v. Mallett, 11 App. 417. 

Complaint — Averments. — A complaint is not bad because it fails to aver that the 
work was done according to contract, when it does appear by the complaint that the 
contract was let, after council had duly advertised for bids, to the lowest bidder, that 
thereafter, on a date named, the common council ordered the engineer to make esti- 
mates of the work done, and said engineer did make report and estimates in accord- 
ance with law for said work, and reported the same to the common council, that said 
report was accepted and the council adopted the order or resolution making the assess- 
ments as reported by the engineer, etc. Bozarth v. McGillicuddy, 19 App. 26. 

It will be presumed that the engineer and common council, nothing appearing to the 
contrary, did their duty, and that the esti^nates and assessments would not have been 
made unless the contract had been performed. The same presumption will also arise 
as to the necessity and benefits of the proposed improvements, and that the property 
was properly subject to taxation. Bozarth v. McGillicuddy, 19 App. 26; Darnell v. 
Keller, 18 App. 103. 

Complaint— Averments. — In an action to enforce an improvement assessment it is 
not necessary to aver that the town or city has not paid the assessment if it is averred 
generally that such assessment is due and unpaid. Bugger v. Hicks, 11 App. 374. 

Same— Assessments— Foundation of action.— The assessment is the foundation of 
the action, and the complaint need not aver width of road or depth of grade, nor set 
out copy of contract of improvement, or allege its specific terms. Bugger v. Hicks, 11 
App. 374; Van Sickle v. Belknap, 129 Ind. 558; Bozarth v. Mallett, 11 App. 417; Sloan 
V. Faurot, 11 App. 689; Lewis v. Albertson, App. Ct., May 24, 1899. 

Wife party defendant.— The wife of the owner of the property is a proper party de- 
fendant in an action to foreclose the assessment, to answer as to her interest, and that 
her inchoate interest in the property may be sold to satisfy the lien. Coburn v. Bos- 
sert, 13 App. 360. 

Parties— City.— In an action by a contractor for the enforcement of certain sewer 
assessment liens against a railroad company's right of way and depot lot, the city in 
which such property is situated having no interest or concern in the question in dis- 
pute, there was no error in overruling the defendant's petition to make the city a party 
to the action. Lake Erie, etc., E. Co. v. Bowker, 9 App. 428. 

Complaint — Averments.— While it is essential to plead all the acts done by the mu- 
nicipal officers to show their authority, it is not required that there should be incorpo- 
rated in the complaint, by reference or otherwise, any written instrument, except the 
estimate or assessment. The assessment is the foundation of the action. It is not nec- 
essary to set out the contract of improvement, nor to allege its specific terms, nor to al- 
lege in minute detail what work has been done under the contract, nor to exhibit a 
copy or refer to the ordinance, resolution or contract. Becker v. Baltimore, etc., E. 
Co., 17 App. 324; Bugger v. Hicks, 11 App. 374; Van Sickle v. Belknap, 129 Ind. 
558; Bozarth v. Mallett, 11 App. 417; Lewis v. Albertson, App. Ct., May 24, 1899. 

An averment in the complaint, that the ordinance for the improvement was enacted 
" by a two-thirds vote of her common council," is a sufficient averment of a compliance 
with the statute providing that the common council, with the concurrence of two-thirds 
of the members, must order the improvement. City of Connersville v. Merrill, 14 
App. 303. 

Same— Assessment— Tax duplicate.— The assessments for improvements are not re- 
quired to be on the tax duplicate, where no waiver is filed, as provided by this section; 
therefore a complaint which fails to aver that the assessments have been placed upon 
the tax duplicate is not for this reason bad. City of Connersville v. Merrill, 14 App. 
303. 

Same— Not entitled to Jury trial.— In an action to foreclose an assessment under 



723 STREET IMPROVEMENTS. § 1113 

this section the plaintiff is not entitled to a jury trial. Bozarth v. McGillicuddy, 19 
App. 26. 

Railroad riglit of Avay— Assessment of .—The right of way of a railroad company 
which abuts upon a street may be assessed for the improvement of the street ; also for 
the construction of a sewer. Pittsburgh, etc., R. Co. v. Hays, 17 App. 261; Peru, etc., 
R. Co. V. Hanna, 68 Ind. 562; Lake Erie, etc., R. Co. v. Bowker, 9 App. 428; Indian- 
apolis, etc., R. Co. V. Ross, 47 Ind. 25; 2 Elliott on Railroads, § 786. 

Same — Lieu of assessment— Foreclosure— Personal judgment. — In an action to 
enforce and foreclose the lien of such assessments against the right of way of a rail- 
road company, personal judgment may be rendered against the railroad company for 
the amount of the lien. Though the road can not be sold upon a decree foreclosing 
the lien, because forbidden upon the ground of public policy, the judgment may be 
satisfied by levy and sale upon execution of any of the personal property of the rail- 
road company subject to execution. Pittsburgh, etc., R. Co. v. Hays, 17 App. 261 ; Louis- 
ville, etc., R. Co. V. State, 8 App. 377; Lake Erie, etc., R. Co. v. Bowker, 9 App. 428; 
Peru, etc., R. Co. v. Hanna, 68 Ind. 563; Louisville, etc., R. Co. v. Boney, 117 Ind. 
501; Louisville, etc., R. Co. v. State, 122 Ind. 442; Lake Erie, etc., R. Co. v. Walters, 
9 App. 684; see 2 EUiott on Railroads, § 790. 

Same — Jurisdiction upon appeaL — A contention that a statute doeg not contemplate 
a personal judgment, upon foreclosure of a street improvement lien against a railroad 
right of way, and that the rendition of such personal judgment is unconstitutional, does 
not involve a question of the constitutionality of the statute, and jurisdiction upon 
appeal is in the appellate court. Pittsburgh, etc., R. Co. v. Hays, 17 Ind. 261. 

Same — Validity of ordinance. — If an ordinance is questioned because it is uncon- 
stitutional, or in conflict with the statutes, or is unreasonable, these are questions con- 
cerning the public, and the jurisdiction upon appeal is in the supreme court ; but, an 
objection to an ordinance which goes only to matters of form, or to irregularities in the 
proceedings of the municipal authorities, is not a question of that grave character and 
dignity that affects the public, and in such case jurisdiction to determine the validity of 
the ordinance assailed is entertained by the appellate court. Pittsburgh, etc., R. Co. v. 
Hays, 17 App. 261; City of Hammond v. New York, etc., R. Co., 5 App. 526; Dugger 
V. Hicks, 11 App. 375; New Albany, etc., Co. v. Crumbo, 10 App. 360. 

The fact that the property foreclosed against can not be sold to satisfy the lien does 
not change the character of the action from one in rem to one in personam and does not 
change the rule that the property must be described in the complaint so that it could 
be located or surveyed. Lake Erie, etc., R. Co. v. Walters, 9 App. 684. 

Attorneys' fees. — A reasonable attorney's fee may be recovered in an action to fore- 
close an assessment lien for street improvements. Lake Erie, etc., R. Co. v. Walters, 
13 App. 275; Dowell v. Talbot Paving Co., 138 Ind. 675. 

Statute construed— Contractor -Lien— Foreclosure.— The amendment of this sec- 
tion by the act of 1891, conferring the rights on the contractor to foreclose his lien, and 
to recover a reasonable attorney's fee, did not impair any vested right or constitutional 
guaranty. It simply provided a remedy for the enforcement of a right which had been 
already created by the act of 1889. The amendment being a remedial statute, is retro- 
spective, and applies to causes of action subsisting at the date of its passage. Dowell v. 
Talbot Paving Co., 138 Ind. 675. 

Partial recovery by contractor— When.— Where a city consents to the construction 
of a railroad switch in the street subsequently to the letting of a contract for a street 
improvement, rendering strict compliance with the same impossible, the contractor 
may recover for his work and material expended in executing the contract as far as it 
was possible under the circumstances. Lake Erie, etc., R. Co. v. Walters, 13 App. 275. 

The assessment in such a case should be decreased by amount that Avould have been 
required to complete the work under the contract had it been possible to do so. Lake 
Erie, etc., R. Co. v. Walters, 13 App. 275. 



§ 1114 CITIES AND TOWNS. 724 

Contractor widening* street.— The fact that a contractor, on his own motion or by 
direction of a town, in improving a street widens it, will not invalidate the proceedings 
nor bar a recovery of benefits assessed. Dagger v. Hicks, 11 App. 374, 384. 

[Acts 1893, p. 283, In force March 3, 1893.] 

1114. All persons may pay by installments.— 1. That the privilege 

now granted by law to persons assessed for the construction of street 
or alley improvements, or sewers, to pay the same in ten years in 
installments, if such assessment exceed fifty dollars upon any one lot, 
shall be extended to all persons, without regard to the sum assessed: 
Provided, They shall execute the stipulation waiving objections on ac- 
count of illegality or irregularities in the proceedings of assessment, 
as is now reouired by law in cases of assessments exceeding fifty dol- 
lars. R. S. 1894, § 4295. 

[Acts 1889, p. 237. In force March 8, 1889.] 

1115. Street and sewer bonds — Lien.™ 8. The common council of 
such city or the board of trustees of such town, for the purpose of an- 
ticipating the collection of such assessments, shall have power to issue 
street or sewer improvement bonds for the purpose of raising money 
with which to pay for such improvements made, and in issuing such 
bonds the common council of such city or the board of trustees of such 
town, shall be governed by the law now in force relating to the issuing 
of bonds by cities. The proceeds arising from said bonds shall be ap- 
plied exclusively to, and appropriated and used for, no other purpose 
than the liquidation of the cost of the improvements in this act men- 
tioned. Said bonds shall bear the name of the street or alley im- 
proved, or the sewer constructed, and shall be payable, in equal in- 
stallments, out of the special fund hereinbefore provided in one, two, 
three, four, five, six, seven, eight, nine and ten years from date, and 
shall bear interest not to exceed 6 per cent, per annum, payable semi- 
annually. In case such city or incorporated town has any money on 
hand belonging to any fund, which will not be used within the maturity 
of any such bonds, such city or incorporated town may invest such 
money in any of such bonds maturing before such money shall be 
needed. After the assessment, as herein provided, has been made by 
the common council of such city or the board of trustees of such town, 
no suit shall lie to restrain or enjoin the collection of such assessment, 
and the validity of such assessment shall not be questioned, and such 
bonds, when issued, shall transfer to the owner thereof all the right 
and interest of such city or incorporated town in and to such assess- 
ments and the liens thereby created, with full power to enforce the 
collection thereof by foreclosure or otherwise, under any of the pro- 
visions of this act. And all such bonds shall be an equal lien upon 
the propertv so assessed without priority of one over the other. R. S. 
1894, § 4296. 

Enjoining- assessments.— The provisions of this section as to enjoining the collection 
of assessments applies only to those who have agreed in writing not to make any ob- 



725 STREET IMPROVEMENTS. § 1116 

jection to the legality of their assessments. Quill v. City of Indianapolis, 124 Ind. 292; 
Richcreek v. Moorman, 14 App. 370. 

City's liability— Secondary— Sale of bonds.— The cost of improvements under this 
statute is not to be charged primarily against the city. The city's liability is but sec- 
ondary, and arises only when it has sold bonds, collected assessments, or otherwise 
realized the amounts owing from the property benefited, and the contractors have not 
been paid. Porter v. City of Tipton, 141 Ind. 347; Quill v. City of Indianapolis, 124 
Ind. 292. 

1116. Certificates to contractor — Collecting assessments— Fore- 
closure. — 9. It shall be lawful for such city or incorporated town to 
provide by ordinance for the issuance of certificates or bonds to con- 
tractors, w^ho, under contract with the city, shall have constructed any 
such improvement in payment therefor, each of which certificates or 
bonds shall bear the name of the sewer, street or alley improved, the 
time the same shall run, not to exceed ten years, the rate of interest 
the same shall bear, not to exceed six per cent, per annum, payable 
semi-annually, and such certificates and bonds shall transfer to the 
contractor and his assigns all the right and interest of such city or 
town to, in and with respect to every such assessment and the lien 
thereby created against the propert}^ of such owners assessed as shall 
avail themselves of the provisions of this act to have their assessments 
paid in installments, and shall authorize such contractor and his 
assigns to receive, sue for and collect, or have collected, every such 
assessment embraced in any such certificate or bond, by or through 
any of the methods provided by law for the collection of assessments 
for local improvements, including the provisions of this act. And, if 
the city or town shall fail, neglect or refuse to pay such certificates or 
bonds, or to promptly collect any such assessments when due, the 
owner of any of such certificates or bonds may proceed in his own 
name to collect such assessment and foreclose the lien thereof in any 
court of competent jurisdiction, and shall recover, in addition to the 
amount of such bonds or certificates and the interest thereon, a reason- 
able attorney's fee, together with the cost of such suit. Any number 
of holders of such certificates or bonds for any single improvement 
may join as plaintiffs, and any number of owners of the property on 
which the same are a lien, may be joined as defendants in such suit. 
And such bonds and certificates shall be equal liens upon the property 
for the assessments represented by such bonds or certificates without 
priority of one over another to the extent of the several assessments 
against the several lots and parcels of lands. R. S. 1894, § 4297. 

Constitutional inliibition— Indebtedness— Improvement bonds.— Bonds or certifi- 
cates issued under this act do not create an indebtedness within the inhibition of ar- 
ticle 13 of the constitution. Such bonds are payable out of the special street improve- 
ment fund to be accumulated from assessments made against the property benefited ; 
and hence no indebtedness arises against the city. Quill v. City of Indianapolis, 124 
Ind. 292; City of New Albany v. McCullough, 127 Ind. 500, 505. 

Waiver — Estoppel. — The propertj'' owner who executes a written Maiver of objection 
to the legality or irregularity of an assessment for public improvements, under this sec- 



§ 1117 CITIES AND TOWNS. 726 

tion, can not afterwards be heard to question the irregularity of the assessment. Eich- 
creek v. Moorman, 14 App. 370; Quill v. City of Indianapolis, 124 Ind. 292. 

First installment — AVhen due and payable.— The first installment of an assessment 
payable in ten annual installments, under this section, is due and payable at the next 
regular time following the completion and acceptance of the work and the making of 
the assessment that taxes are payable, whether it be April or November installment, 
although if the assessment had not been made payable in installments it would have 
been payable in the following April. Richcreek v. Moorman, 14 App. 371. 

1117. Precept for sale — Appeal — Sale and conveyance. — 10. In 

case any of the owners of lots or parcels of grounds on which such 
assessments have been made shall fail, or refuse, for the space of 
twenty days after the date of the estimate to pay the amount thereof 
due by such person to such contractor, such contractor shall file his 
affidavit in the clerk's office of said city, stating that the whole or 
some part of said assessment remains unpaid, showing the amount 
paid and the amount due; that the estimate thereof has been duly 
made, and that the work estimated has been done according to con- 
tract, it shall be the duty of the clerk at the next or any subsequent 
meeting of the common council to report the said affidavit to the coun- 
cil, whose duty it shall be to cause a precept to issue for the collection 
of such assessment or any unpaid balance thereof, which precept shall 
be signed by the mayor and attested by the clerk, and sealed with the 
seal of said city, and shall set forth the name of the person against 
whom the assessment is made, the description of the lot or land on 
w^hich it is made, the amount of such assessment and the date of the 
estimate, which shall be directed to the treasurer of such city, com- 
manding him to make such assessment, or unpaid balance thereof, 
within ten days after receiving such precept, of the owner in whose 
name such assessment is made, which precept the clerk shall forth- 
with deliver to the treasurer, who shall serve the same by reading the 
same personally to such owner or by leaving a copy of such precept 
at his last or usual place of residence; or if such owner be unknown 
or not a resident of such city, then by publication for three successive 
weeks in a v/eekly newspaper printed and published in the city, briefly 
setting forth the facts of the estimate, the amount due, that the work 
has been done as contracted, the name of the person whose property 
is to be sold, the description of the property, and the date of the order 
of said precept by the said council, and giving notice that if such as- 
sessment be not paid within twenty days after publication he will pro- 
ceed to make the same by levy and sale of the lot or lands whereon 
the same is assessed. Any owner of land or his representatives ag- 
grieved by such precept may appeal therefrom, within twenty days 
after such demand or publication, to the circuit court of the county 
wherein such cit}^ is situated upon filing sufficient bond with the 
clerk of said city, conditioned for the payment of w^hatever judgment 
may be rendered against such appellant in said court, and such ap- 
peal shall stay all proceedings by such treasurer. And the trial of 
such appeal shall be conducted as other trials of civil causes 



727 STREET IMPROVEMENTS. § 1117 

are conducted in said courts : Provided, That no question of 
fact shall be tried which may arise prior to the making of the 
contract for the said improvement under the order of the council. 
The clerk shall, upon the filing of said bond, forthwith make out 
and certify, under his hand and official seal, a true and com- 
plete copy of all papers connected in any way with the said street 
improvement, beginning with the order of the council directing the 
work to be done and contracted for, and including all notices, pre- 
cepts, orders of council, bonds and other papers filed in said matter, 
which transcript shall be in the nature of a complaint, and to which 
the appellant shall answer upon rule; and in case the court and jury 
shall find, upon trial, the proceedings of said officers subsequent to 
said order directing the work to be done, are regular, that a contract 
has been made, that the work has been done, in whole or in part, ac- 
cording to the contract, and that the estimate has been properly made 
thereon, then said court shall direct the said property to be sold and 
conveyed by the sheriff thereof as the said treasurer is hereinafter di- 
rected to sell and convey property liable to street improvements: Pro- 
vided, That nothing herein shall be so construed as to prevent any 
person from obtaining an injunction upon the proceedings prior to the 
making of any such improvements. If no such appeal shall have been 
taken as aforesaid, it shall be the duty of such treasurer, within ten 
days after the expiration of said twenty days, to levy said precept upon 
the lot or land therein described, and to sell the same or so much 
thereof as may be necessary, to pay such assessment, with costs and 
charges. But before any such sale he shall give notice of the time 
and place thereof, by advertising the same for three weeks successively 
in a newspaper printed and published nearest to such lot or land, if 
any such be printed and published w^ithin the county wherein such 
city is situated, and by posting up written or printed notices thereof 
in at least three public plaices in said city. And every such sale shall 
be by public auction, and upon or near the premises, or in the city 
court room of said city, in the discretion of said treasurer; and no sale 
of said lot or land previous or subsequent to the date of such estimate, 
and subsequent to the date of such petition or determination of the 
common council to make such improvement without petition shall in- 
validate or affect any sale thereof in pursuance of this act. Upon the 
sale of any lot or land by virtue of such precept, and the payment of 
the purchase-money, the treasurer (or in case of his death or going- 
out of office, his successor), shall execute, acknow^ledge and deliver to 
the purchaser a certificate of conveyance for the premises, which 
shall be valid and effectual to convey all the rights, title and inter- 
est of any such ov^ner or purchaser from him as aforesaid, except 
as hereinafter provided, and shall be prima facie evidence of all 
the facts recited therein. In case the purchaser of any real estate 
under a precept, as aforesaid, having paid the purchase-money there- 
for, shall die before a certificate of conveyance, as herein provided, 
shall have been executed to him, the treasurer shall convey the same 



§ 1117 CITIES AND TOWNS. 728 

to the heirs or devisees of such deceased purchaser. The proceeds of 
any such sale shall be applied as follows, to wit: Firstly, to the pay- 
ment of such assessment, with interest thereon from the date of such 
estimate, and all costs accrued thereon by reason of said sale; and, 
Secondly, the residue of such proceeds shall be paid to the owner or 
his or her heirs or representatives, of such real estate, or, if unknown, 
it shall be paid into the city treasury; and such city shall at all times 
be responsible to such owner, heirs or representatives for such res- 
idue. The purchaser under such precept shall hold such real estate 
subject to the lien of the unpaid part of its proportion of the whole 
cost of the improvement. The treasurer shall be entitled to a com- 
mission of five per cent, on the first hundred dollars, and three per 
cent, on any excess above that sum; but when the money is paid to 
him without sale, one-half commission only shall be received by him. 
For levying on the real estate and advertising the same, he shall re- 
ceive one dollar; for personal demand for payment, twenty-five cents; 
for return of the precept, with his doings thereon, one dollar; for mak- 
ing certificate of sale on real estate, one dollar. He shall endorse on 
said precept the time of receiving the same, and, within three months 
thereafter, he shall make return thereof to the clerk, with his proceed- 
ings thereon. Any purchaser failing to pay the purchase-money shall 
be subject to the like penalties and proceedings as purchasers at sher- 
iff's sale are by the laws of this state. The owner of any lot or land 
sold as aforesaid, or his agent or attorneys, heirs or representatives, 
may redeem the same at any time within one year after the day of 
sale, by paying to the purchaser, or to the city treasurer for the use of 
the said purchaser, or his heirs or assigns, the sum mentioned in his 
certificate, and the amount of all subsequent assessments paid by the 
purchaser, with fifty per cent, on the whole sum, and interest from 
date of purchase or time of payment: Provided, That infants, idiots, 
insane persons and femme covert, may redeem any such lot or land be- 
longing to them, sold for assessment, as aforesaid, within one year 
from expiration of such disability. Claimants of a part of such land, 
or of any individual part of the same, may redeem the whole as other 
owners may redeem. If such owner, or other person on his behalf, 
shall fail to redeem such land within one year, as aforesaid, at the ex- 
piration thereof, and on production of the certificate of purchase, the 
treasurer shall execute to the purchaser, his heirs or assigns, in the 
name of the city, a conveyance of the real estate so sold, which shall 
vest in the grantee an absolute estate in fee-simple, subject, however, 
to all claims which the city may have thereon for assessments, or 
liens, or other incumbrances. Such certificate and final conveyance 
shall resemble, as nearly as may be, the certificate and conveyance 
for tax sales, and be prima facie evidence of all the facts recited 
therein. [As amended. Acts 1891, p. 326. In force March 6, 1891.] 
R. S. 1894, § 4298. 

Amendment. — This section as amended takes the place of the original. All the pro- 
visions of the act are to be construed together. Robinson v. City of Valparaiso, 136 
Ind. 616. 



729 STREET IMPROVEMENTS. § 1117 

Applies only to cities. — This section as amended by act of 1891 applies only to cities. 
Dowell V. Talbot Paving Co., 138 Ind. 675. 

Two methods for enforcing* liens.— The statute provides two methods of collecting 
assessments, one according to the provisions of this section, the other by foreclosure as 
a mortgage is foreclosed, in any court of competent jurisdiction. Bozarth v. Mallett, 11 
App. 417; Bozarth v. McGillicuddy. 19 App. 26. 

Discretion of council— Collateral attack.— The matter of constructing improve- 
ments and accepting the same when completed is placed in the hands of the council, 
and the judgment of the council can not be questioned by collateral attack by way of 
injunction to restrain the city from accepting a system of sewers and from paying there- 
for by assessment or otherwise on account of the defective construction thereof. The 
law affords the property owner a full and complete remedy therefor and injunction will 
not lie. Robinson v. City of Valparaiso, 136 Ind. 616; Barber, etc., Co. v. Edgerton, 
125 Ind. 455; Alley v. City of Lebanon, 146 Ind. 125. 

Direct attack — Estoppel. — A property owner has the right to assume that his prop- 
erty will be assessed for improvements at least under color of the statute, and where 
ihe remedy sought is not a collateral but a direct proceeding attacking the assessment 
there is no estoppel. Crawfordsville, etc., Assn. v. Clements, 12 App. 464. 

Improvement— Not in strict conformity with contract— Recovery.— Where the 
construction of a railroad switch in a street, with the consent of the city, subsequently 
to the letting of the contract for a street improvement, rendered strict compliance with 
the same impossible, the contractor may recover for his work and material expended in 
executing the contract as far as it was possible under the circumstances. Lake Erie, 
etc., R. Co. V. Walters, 13 App. 275. 

Acceptance of work. — The city council is the judge that decides whether or not the 
contract has been, in all requirements, fulfilled. If the work is accepted by the city 
council, the property owner can, in the absence of fraud, interpose no objection in an 
action to enforce the lien of the assessment. Earned v. Maloney, 19 App. 199 ; Bozarth 
V. McGillicuddy, 19 App. 26; Darnell v. Keller, 18 App. 103. 

Bond. — After the improvements are completed, in an action to enforce the lien of an 
assessment, a property owner can not object that the bond required to be given by the 
contractor Avas not filed within the period provided by the contract. A bond filed 
within the period required by the contract,, though bearing a date subsequent to the 
date hmited for the filing, is suflficient. Earned v. Maloney, 19 App. 199. 

Appeal.— The statute provides for an appeal, in which " all questions from the mak- 
ing of the contract to the report of the engineer on the final estimate are brought in re- 
view." The right of appeal is statutory. The legislature has " authority to deny an 
appeal, and to make the decision of the municipal authorities final and conclusive." 
Hughes V. Parker, 148 Ind. 692; Robinson v. City of Valparaiso, 136 Ind. 616; Sims v. 
Hines, 121 Ind. 534; Chicago, etc., R. Co. v. City of Huntington, 149 Ind. 518. 

The provision of this section for appeals to the circuit court from the issuing of a pre- 
cept against a property owner for the collection of a sewer assessment applies where 
the contractor has been paid, and the city is substituted to his rights the same as in 
case the contractor himself applies for a precept, and an appeal taken from such assess- 
ment prior to the issuing of a precept is premature. Chicago, etc., R. Co. v. City of 
Huntington, 149 Ind. 518. 

Injunction — Appeal. — An injunction can not be maintained by a property owner to 
prevent the improvement of the streets after the contract is let, unless it is shown that 
the common council or board of trustees was absolutely without jurisdiction to enter 
into the contract for the improvement of the street ; after the letting of the contract, 
where the authorities proceed with jurisdiction, the remedy of the property owner is 
by appeal in case a precept issues and he is aggrieved thereby. Everett v. Deal. 148 
Ind. 90; Alley v. City of Lebanon, 146 Ind. 125; Robinson v. City of Valparaiso, 136 
Ind. 616; Elliott Roads and Streets, pp. 296, 440, 442. 



§ 1118 CITIES AXD TOWNS. 730 

In an injunction suit to prevent the improvement of a street, the introduction of town 
maps and evidence as to names of streets, and their dedication to the public, were all 
proper for the information of the court ; also, the nunc pro tunc entry in the minutes of 
the town board. Everett v. Deal, li8 Ind. 90. 

The question whether the yeas and nays were taken on the passage of the ordinance 
or resolution can not be presented on a complaint for injunction. Such question can 
be raised only upon appeal or direct attack. Pittsburg, etc., E. Co. v. Town of Crown 
Point, 150 Ind. 536; Balfe v. Lammers, 109 Ind. 347. 

Collateral attack— Injunction. — A suit to enjoin the assertion of a lien after the 
work is done is a collateral attack, and is not proper as to any defects or irregularities 
w^hich do not affect the jurisdiction. De Puy v. City of Wabash, 133 Ind. 336; McEne- 
ney v. Town of Sullivan, 125 Ind. 407; Sands v. Hatfield, 7 App. 357; Reeves v. Grot- 
tendick, 131 Ind. 107 ; Eobinson v. City of Valparaiso, 136 Ind. 616. 

[Acts 1891, p. 330. In force March 6, 1891.] 

1118. Act not to apply to cities of one hundred thousand. — 4. The 

provisions of this act shall not apply to cities of one hundred thousand 
population or more, according to the last preceding United States 
census. R. S. 1894, § 4299. 

[Acts 1885, p. 73. In force July 18, 1885.] 

1119. Estimates— Contractors to satisfy of record. — 1. That the 
common councils of the cities of this state and boards of trustees of in- 
corporated towns of this state shall have power to pass and enforce 
ordinances requiring contractors making street or other improvements 
in such cities, to receipt and fully satisfy the estimate records and 
other books showing a lien against any one's property in favor of such 
contractor, within thirty days from the time of the payment of such 
estimate to said contractor, and to impose penalties for violation of 
such ordinances. R. S. 1894, § 4300. 

[Acts 1899, p. 8. In force Febraary 2, 1899.] 

1120. Cost of improyements — Apportionment — Cities less than 
5910, etc. — 1. That in all cities of this state which had a population 
of less than fifty-nine hundred and ten and more than fifty-eight 
hundred inhabitants, as shown by the United States census of 1890, 
whenever the common council of any such city shall order any street, 
alley or sidewalk improvement therein, the cost of any such street, 
alley or sidev^alk improvement shall be estimated, according to the 
whole length of the street, alley or sidewalk, or so much thereof to be 
improved as is uniform in the extent and kind of the proposed im- 
provement per running foot, and the total cost thereof, exclusive of 
one-half the cost of street and alley intersections, shall be apportioned 
upon the lands or lots abutting thereon. The remaining one-half cost 
of street and alley intersections shall be apportioned upon the lands 
or lots abutting on the street or alley intersecting the street or alley 
under improvement for a distance to the street line of the first street 
extending across the said intersection street or alley improved: Pro- 
vided, That in case of intersections with diagonal streets or avenues 



731 ■ STREET IMPROVEMENTS. § 1121 

the remaining one-half cost of each intersection shall be apportioned 
on the lands abutting on each of the intersecting streets for a distance 
to the street line of the first street extending across each of said inter- 
secting streets in each direction from the street improved. Should a 
street or alley enter into and not across a street or alley under improve- 
ment then the assessment for the cost of one-haii of said entering street 
or alley, measured to the center line of the street or alley under im- 
provement, shall be made on the lots or lands abutting on said en- 
tering street or alley for a distance to the street line of the first street 
extending across the said intersecting street or alley, and such last 
named assessment shall be made pro rata upon the lots or lands abut- 
ting on said street or alley. Such assessment shall be made without 
regard to the assessment for taxation. Such city shall be liable to the 
contractor for the contract price of such improvement to the extent of 
the moneys actually received by such city from the assessments for 
such improvements and the owners of property bordering on such 
street or alley shall be liable to the city for their proportion of the cost, 
exclusive of one-half the cost of street and alley intersections, in the 
ratio of the front line of their land or lots, whether platted or not, 
owned by them, to the whole cost of the improvement for that part of 
the said street or alley on which said land or lots are located, and 
which is uniform in extent and quality of improvement. And the 
owners of the lots or lands on the streets or alleys intersecting or en- 
tering into such street or alley shall be liable to the city for their pro- 
portion of the cost of improving the one-half of the street and alley 
intersections, in the proportion that their front line on said street or 
alley bears to the sum of the length of the front lines of said lots or 
lands abutting on said street or alley for a distance, as provided above, 
from the street or alley under improvement. Said city shall have 
separate and several liens upon such lands or lots from the time the 
contract for such improvement is finally let, for the respective assess- 
ments against each lot or parcel of land. 

1121. Act supplemental. — 2. This act is amendatory of and sup- 
plemental to an act concerning the powers and duties of cities and in- 
corporated towns, approved March 8, 1889, Acts of 1889, page 237, 
commonly known as the '^ Barrett law;" and it is declared that this 
act shall not repeal any of the provisions of the said "Barrett law" 
except in so far as such provisions are inconsistent with the provisions 
of this act. 

[Acts 1899, p. 9. In force February 2, 1899.] 

1122. Sidewalk improvements— Certain cities. — 1. That whenever 
the common council of any city in counties having a population of 
not less than 19,700 and not more than 20,000 by the census of the 
United States for the year 1890, shall deem it necessarj^ that the side- 
walks of any street, or part of street, or part of one side of a street in 
such city should be paved or graded and paved, such common coun- 
cil may, by resolution or ordinance, compel the owners of real estate 



§ 1123 CITIES AND TOWNS. 732 

abutting on said street or parts of street, to pave, or to grade and pave 
the same. 

1123. Grade — Contract — Terms. — 2. Such ordinance or resolu- 
tion shall, if a grade is to be established, specify the grade by setting 
it out, or by reference to the record of such grade, the size and kind 
of sidewalk to be constructed, and the time within which the same is 
to be done by the property owner, which shall be not less than three 
weeks from the passage of such ordinance. Said ordinance or resolu- 
tion shall also provide the time, manner and terms of the letting of 
the contracts for doing said work, which letting shall be not less than 
one week after the time fixed for the building of said sidewalk by the 
property owner. 

1124. Notice. — 3. Notice of the matters herein provided for to 
the owners of the real estate affected by proposed improvements, and 
the proposed letting of the contracts hereinafter provided shall be given 
by the publication for one time of said ordinance or resolution for 
said improvement in a newspaper of general circulation printed and 
published in said town or city. If no paper be published in said 
town or city, then by posting copies of said ordinance or resolution in 
three public places in said town or city. 

1125. Contract to lowest bidder. — 4. If the respective owner or 
owners of the real estate abutting on said proposed sidewalks shall fail 
or refuse to pave, or to grade and pave, the same as required by and 
within the time fixed by said ordinance, the common council shall let 
the same to the lowest responsible bidder, said bids being sealed bids. 
When said paving is completed according to the terms of the ordinance 
or resolution, the common council, shall accept and receive the same, 
and shall assess the cost thereof against the respective real estate 
abutting on said improvements, which assessment shall be a lien on 
the property so assessed from the date of the passage of said ordinance 
or resolution, and shall be a lien prior to all other liens or claims, ex- 
cept taxes. 

1126. Assessments — How collected — Foreclosure. — 5. If the con- 
tractor shall so elect in writing, the said assessments may be placed 
on the tax duplicate, to be collected as taxes are collected; otherwise 
said contractor, after thirty days from the acceptance of said improve- 
ments, and the making of said assessment, may foreclose said assess- 
ment and lien in a court of competent jurisdiction as mortgages are 
foreclosed, and the plaintiff shall, in the event he recover, shall have 
taxed as costs a reasonable attorney's fee. 

1127. Contractor's receipt. — 6. Whenever any payment is made 
on any such assessment the contractor must, on the record thereof, re- 
ceipt the same. 

1128. Change of grade. — 7. That whenever improvements are 
made under this act on the natural surface grade, the city after two 
years may establish or change the grade, or cause new improvements, 
under this or any other law, to be constructed without the payment of 
any damages or liability therefor: Provided, That where a sidewalk 



733 STREET IMPROVEMENTS. § 1129 

built on the natural grade would be dangerous or inconvenient for 
travel thereon, the common council may change the grade sufficiently 
to make it safe and convenient, and the same shall be deemed the 
natural grade. 

1129. Improvements under other laws. — 8. This act shall not pre- 
vent the common council of said city from providing for or causing 
the paving, or grading and paving, of sidewalks by and under any 
law now in force. 

[Acts 1899, p. 411. In force March 4, 1899.] 

1130. Street improvements in towns and cities of less than 12,000. — 

1. That in no incorporated town or city in this state, of less than 
twelve thousand inhabitants, shall any assessment be made upon, or 
any lien attached to, any real estate bordering on, or abutting upon, 
any street, sidewalk or alley therein, from or on account of any im- 
provement of any kind made upon, or in, any such street, sidewalk or 
alley pursuant to any order, resolution, ordinance, or other action of 
the board of trustees of such town, or of the common council of such 
city, unless such improvement shall have first been ordered to be 
made by such board of trustees, or by such common council, and not 
then if a written remonstrance signed by two-thirds of the resident 
owners of the whole line of the lots and parts of lots (measuring only 
the front line of such lots and parts of lots as belong to persons resi- 
dent on such street in such town or city) bordering on, or abutting 
upon, all that part of such street, sidewalk, or alley upon which, or 
in which, such improvement shall have been ordered to be made, be 
filed before the said improvement be advertised for contract: Provided, 
Jiowever, That such board of trustees and common councils shall have 
power to order constructed sidewalks, alley or street improvements of 
similar character, to connect street, alley or sidewalk improvements 
already constructed and to require such walks to be constructed or 
such repairs to be made upon the streets and sidewalks of their re- 
spective towns and cities as may be necessary to avoid the liability of 
such towns and cities for damages on account of accident which miglit 
occur if such repairs were not made, and to enforce payment of the 
cost of such repairs according to provisions of the statutes now in 
force. Provided, further, That the provisions of this act shall not 
affect any improvement heretofore ordered or an improvement similar 
in character on a street, alley or sidewalk when both e-nds have been 
previously made leaving an intermediate portion unimproved: And 
provided, further, The provisions of this act shall not apply where the 
proposed improvement is a sidewalk only, which borders or abuts on 
one lot, part of a lot or parcel of ground only. 

2. All laws and parts of laws inconsistent w^itli the provisions of 
§ 1 of this act are hereby repealed. 

[Acts 1899, p. 52. In force April 27, 1899.] 

1131. Cleauiufi: streets and alleys. — 1. That all incorporated 
cities and towns in this state are hereby authorized and empowered' to 



§ 1132 CITIES AND TOWNS. 734 

provide by ordinance for keeping streets, alleys and public grounds 
therein in a clean and sanitary condition, and provide for the pay- 
ment of the costs thereof either out of the general funds of the town or 
by taxing the same against the property holders abutting upon the 
streets and alleys, and for collecting the same from such abutting 
property owners by placing said costs and expenses upon tax dupli- 
cates, and to be paid as taxes are paid. 

[Acts 1899, p. 88. In force February 22, 1899.] 

1132. Actions to enforce improvement assessments — Notice.— 1. 

That no action shall be maintained for the enforcement of any lien or 
assessment for any benefit accruing to real estate by improvement of 
any street, alley, sidewalk, or other public place, or by construction of 
sewer, drain, levee or other public improvement, unless it be shown 
to the court that reasonable inquir}^ was made for the full name and 
address of the owner of the land so assessed, and that at least ten days 
before the commencement of such suit such owner if found or known 
was notified of such assessment, including the amount thereof with 
interest, and where the same is payable. The written receipt of such 
owner, or of any one of such owners, of any parcel of land for a reg- 
istered letter, together with testimony that such letter in fact stated 
the nature and amount of the assessment and all charges, and where 
the same was payable shall be presumptive evidence of the service of 
such notice. 

1133. Attorney's fees — Amount. — 2. In no event shall the attor- 
ney's fees in any such action exceed the amount of the assessment or 
unpaid fraction thereof. No attorney's fees shall be collectible until 
after suit brought, and only in case where such suit is legally main- 
tainable. 

1134. Owner may recover illegal fees and penalty. — 3. It shall be 
unlawful for any attorney or collector to collect from any owner of 
such real estate so assessed, or other person interested, any attorney's 
or other fee for the collection of such assessment or installment there- 
of except such as are specially provided by law. In case any such 
unlawful collection shall be made the owner or owners of the land, or 
other person paying the same may recover from the person or persons 
so collecting such, ten times the amount thereof, with reasonable at- 
torney's fees, all collectible without relief from valuation or appraise- 
ment laws, or benefit of exemption laws. 

1135. Misdemeanor — Penalty. — 4. Any person so collecting any 
unlawful attorney's or other fees for the collection of any such assess- 
ment shall be guilty of a misdemeanor, and on conviction thereof shall 
be fined in any sum not less than twenty-five dollars, and not more 
than five hundred dollars. 

AKTICLE 8.— PUBLIC LIGHTS. 

SEC. SEC. 

1136. Power of council or trustees as to 1138. Right to maintain may be granted. 

light. 1139. Existing contracts valid. 

1137. Poles and wires in streets. 1140. Right of way. 



735 PUBLIC LIGHTS. § 1136 

[Acts 1883, p. 85. In force March 3, 1883.] 

1136, Power of council or trustees as to li^ht, — 1 . That the com- 
mon council of any city in this state, incorporated either under the 
general act for the incorporation of cities, or under a special charter, 
and the board of trustees of all incorporated towns of this state shall 
havS the power to light the streets, alleys and other public places of 
such city and town with the electric light, or other form of light, and 
to contract with any individual or corporation for lighting such 
streets, alleys and other public places with the electric light, or other 
forms of light, on such terms, and for such times, not exceeding ten 
years, as may be agreed upon. R. S. 1894, § 4301. 
• See ante, § 124, clause 28, and § 131 ; post, § 1204. 

Act constitutional — Power to contract for lig-hts or own plant.— This act is consti- 
tutional, and cities and towns may contract for the lighting of the streets and alleys 
or other public places with electric or other forms of light, on such terms and for such 
times, not exceeding ten years, as may be agreed upon; or may purchase or construct 
and own and operate the necessary plant and machinery for the public lighting. A 
municipal corporation owning and operating its own plant has the power to purchase 
all the materials, and employ all the labor necessary for carrying it on. Crowder v. 
Town of Sullivan, 128 Ind. 486; Seward v. Town of Liberty, 142 Ind.551; Eushville 
Gas Co. V. City of Eushville, 121 Ind. 206; City of Crawfordsville v. Braden, 130 Ind. 
149; Foland v. Town of Frankton, 142 Ind. 546; Rockebrandt v. City of Madison, 9 
App. 227. 

Same — Contract does not create debt. — When a municipal corporation contracts for 
light or water, and agrees to pay for it annually as furnished, the contract does not cre- 
ate an indebtedness for the aggregate sum of all the yearly installments, since the debt 
for each year does not come into existence until the compensation for each year has 
been earned. Foland v. Town of Frankton, 142 Ind. 546; Crowder v. Town of Sulli- 
van, 128 Ind. 486; City of Laporte v. Gamewell, etc., Co., 146 Ind. 466; City of Valpa- 
raiso v. Gardner, 97 Ind. 1; Seward v. Town of Liberty, 142 Ind. 551. 

Expense for lig'ht, etc., payable from g-eneral fund.— The expense for light, water, 
labor and the like, is essential to the maintenance of corporate existence, and consti- 
tutes current expenses, payable out of the current revenues, which may be applied to 
such purposes, even though the effect is to postpone judgment or other creditors. Fo- 
land v. Town of Frankton, 142 Ind. 646; City of Valparaiso v. Gardner, 97 Ind. 1; 
Town of Fowler v. F. C. Austin Mfg. Co., 5 App. 489. 

Municipal discretion, courts can not control.— The power given by the statute to 
contract for light is purely a business power and is discretionary. Such discretionary 
power is not subject to judicial control, except in cases where fraud is shown or the dis- 
cretion is being grossly abused to the oppression of the citizens. Seward v. Town of 
Liberty, 142 Ind. 551, 552 ; City of Valparaiso v. Gardner, 97 Ind. 1 ; City of Crawfords- 
ville V. Braden, 130 Ind. 149. 

Power to contract for lig-ht a business and not a legislative power— Period. — The 
power to contract for light, water and the like is purely a business power, and is neither 
legislative nor judicial. A city has the power to contract for a supply of gas or water 
for a period extending beyond the tenure of office of the individual members of the 
common council making such contract. With reference to a contract made prior to the 
enactment of this statute it can not be said that twenty -five years is an unreasonable 
time for which to contract for a supply of light and water. City of Vincennes v. Citi- 
zens', etc., Co., 132 Ind. 114; City of Indianapolis v. Indianapolis, etc., Co., 66 Ind. 
396; City of Valparaiso v. Gardner, 97 Ind. 1. 



§ 1136 CITIES AND TOWNS. 736 

Power granted by a citj^ to a gas corapany to lay, maintain and repair gas pipes in its 
streets is a legislative contract, investing such company with the right of property in 
the franchise thus granted, which the city, unless the right is reserved, can not take 
away or impair without the company's consent by any subsequent act. City of Indi- 
anapohs v. Consumers', etc., Co., 140 Ind. 107. 

Notice. — Notice of letting a contract for public lights is not required, nor is it neces- 
sary to invite proposals for bids. Crowder v. Town of Sullivan, 128 Ind. 486. 

Municipal ownership — Private consumers. — Municipal corporations may establish 
works for lighting the streets, and may furnish lights to private consumers under con- 
tract. City of Crawfordsville v. Braden, 130 Ind. 149 ; Thompson Houston Electric 
Co. V. City of Newton, 42 Fed. Eep. 723. 

Inherent power as to lig'ht. — The power to Hght the streets and public places of a 
municipality is one of its implied and inherent powers, necessary to properly protect 
the lives and property of its inhabitants, and as a check on immorality. No statute is 
necessary to give it this power. City of Crawfordsville v. Braden, 130 Ind. 149. 

(xas supply — Exclusive privileg-e- Contract construed.— The defendant passed an 
ordinance granting to the plaintiff's assignors, for a period of twenty-five years, the 
privilege of laying gas mains, to supply gas for illuminating purposes, along certain 
streets of the city. It was provided that the defendant should maintain a certain num- 
ber of lamp-posts, and such additional lamp-posts and lamps along said mains as the 
city council might from time to time direct. It was further provided that, upon the 
erection of said lamps, the city should take sufficient gas from the company to keep the 
said lamps lighted, and should pay at the rate of $3 per month for each and every lamp. 
Afterward an extension of the mains was ordered, and the plaintiff submitted a propo- 
sition concerning the use and payment of the additional lamps to be provided. The 
proposition was accepted by the common council, with the stipulation "that it be in 
force no longer time than the original contract." This subsequent arrangement was 
referred to as a contract in a number of resolutions passed by the common council in 
ordering the extension of mains. Although no definite time was mentioned in the or- 
dinance during which the defendant was obhgated to take gas for lighting its street 
lamps, the interpretation of the ordinance by the ordinary rules of construction and 
the acts of the parties thereunder, show that, by the ordinance, the city contracted to 
pay for twenty-five years for the gas furnished by the lamps provided for therein and 
by those afterward erected. The ordinance did not grant an exclusive use of the streets, 
and a monopoly was not given for supplying the city with gas for street lighting pur- 
poses. The contract was not void on account of any supposed surrender by the com- 
mon council of its legislative power. City of Vincennes v. Citizens', etc., Co., 132 Ind. 
114, 121. 

Defendant city, by special ordinance, had contracted with plaintiff for hghting its 
streets with gas, and subsequently, by another ordinance, extended the terms thereof 
for twenty-five years, under conditions which plaintiff accepted. Under its terms, as 
the contract then stood, the city might at any time determine upon the substitution of 
electricity for gas, such change to be made by plaintiff, but leaving the number and 
price of the lights thus furnished to be fixed by an equitable agreement to be afterward 
made. It appeared that the common council did so determine, notifying plaintiff that 
it would receive its competitive bid for the contract, whereupon plaintiff replied that it 
was ready to make the substitution, and that it was ready to agree upon the ''equitable'' 
terms. Plaintiff declined to bid for the contract. It nowhere appeared in the com- 
plaint that plaintiff ever offered to furnish electric lights for their reasonable value. The 
fact that the terms of the whole agreement had not been definitely settled between the 
parties precluded the issuance of an injunction restraining the city from contracting 
with any one else to furnish it with electric light. Gashght, etc., Co. v. City of New 
Albany, 139 Ind. 660. 



737 PUBLIC LIGHTS. § 1136 

Conflict of ordinances— Effect. — In an action brought by the plaintiff to recover for 
gas supphed to the defendant for public street lighting, under an ordinance, a demurrer 
was properly sustained to a paragraph of answer which alleged that, at the time of the 
passage of the ordinance, an ordinance of the defendant was in force which required 
that proposals for work, the estimated cost of which should exceed $40, should be let to 
the lowest bidder after a notice for proposals had been given by publication, and that 
the ordinance in suit was passed in violation of this ordinance. The ordinance claimed 
to have been violated evidently referred to work done for the city, and not to contracts 
such as the one in suit. If the passage of the ordinance sued on was within the pro- 
hibition of the other ordinance, its passage repealed it pro tanto. City of Vincennes v. 
Citizens', etc., Co., 132 Ind. 114, 128. 

Partial annulment of contract. — A paragraph of answer was also bad which alleged 
that the common council, by resolution, prohibited the plaintiff from supplying gas 
after a certain date for ten of the lamp-posts specified in the complaint. The contract was 
mutually binding upon both the contracting parties, and neither could, by its own act, 
prejudice the position of the other. City of Vincennes v. Citizens', etc., Co., 132 Ind. 
114, 121. 

Exclusive priviieg'e— Use of streets.— A municipal corporation can not grant to a 
private corporation the exclusive privilege of using its streets for the purpose of supply- 
ing the corporation or its citizens with light, water, fuel, or the like. Crowder v. Town 
of Sullivan, 128 Ind. 486; City of Rushville v. Rushville, etc., Co., 132 Ind. 575,578; 
Indianapolis, etc., E. Co. v. Citizens', etc., Co., 127 Ind. 369; Citizens', etc., Co. v. 
Town of Elwood, 114 Ind. 332; Westfield, etc., Co. v. Mendenhall, 142 Ind. 538; 
City of Vincennes v. Citizens', etc., Co., 132 Ind. 114; Elliott Roads and Streets, pp. 
566^569. 

Special ordinance — When g-eneral ordinance necessary— License. — A special or- 
dinance granting a permissive license to a designated corporation is effective. When a 
municipality attempts to regulate the mode of using its streets it must do so by a gen- 
eral ordinance ; but when it simply grants a privilege to use the streets, and does not 
undertake to regulate the entire subject, a general ordinance is not indispensably nec- 
essary to authorize the licensee to use the streets. The rights acquired under a mere 
permissive license are subject to control under the delegated governmental power vested 
in the municipality. Crowder v. Town of Sullivan, 128 Ind. 486. 

Electric lig-ht contract without exclusive privileg-es.— A city which has granted a 
private corporation the right to erect and maintain an electric light plant for furnishing 
light to the city and its inhabitants, but without exclusive privileges, is not thereby pre- 
cluded from erecting and maintaining a plant of its own for such purpose, under a 
statute which confers the power to do so. Thompson Houston Electric Co. v. City of 
Ne\^i:on, 42 Fed. Rep. 723. 

Electric lig"ht contract — Bond— Sureties.— Where one enters into a contract with a 
town to light the streets with electric lights for a term of years, and at the same time 
enters into a bond as principal with certain others as sureties conditioned that he will 
well and truly comply with all and singular the terms and conditions of said contract 
and pay all damages accruing to the town in the event of his failure to carry out the 
terms of his contract, the persons so joining him in the execution of said bond are sure- 
ties and not guarantors. Town of Sullivan v. Cluggage, 21 App. 667. 

Same— Notice.— Where a party who has entered into a contract to Hght a town with 
electric lights for a term of years, and has given an ordinary bond conditioned as set 
forth in the preceding note, the abandonment of the contract by the person who has 
given bond in a penal sum to secure its performance creates a liability for damages re- 
coverable on such bond and the sureties upon the bond become immediately liable 
without notice from the town. Town of Sullivan v. Cluggage, 21 App. 667. 

CiT. AND To.— 47 



§ 1137 CITIES AND TOWNS. 738 

Injunction— Lig'htin^ contract— Price— Fraud.— A town will not be enjoined for 
making a contract for lighting its streets with gas on the ground of fraud, simply be- 
cause the price to be paid is three times that paid by private consumers, where it does 
not appear that the gas plant was sufficient to furnish the necessary gas, or that it can 
be obtained elsewhere for a less amount, or that the gas to be furnished the town is of 
the same quality as that furnished to private consumers. Seward v. Town of Liberty, 
142 Ind. 551. 

Injunction— Ag"ainst city to prevent breach of contract. — Injunction will not issue 
to restrain a city which is solvent from committing a breach of an agreement existing 
bet\veen itself and plaintiff, by the terms of which plaintiff is to furnish defendant with 
lights for a stated period of time, and to prevent its contracting with another than 
plaintiff therefor. Gaslight, etc., Co. v. City of New Albany, 139 Ind. 660. 

Where a gas company violates an order of a court of equity enjoining it from charg- 
ing the consumers more than a specified sum for gas, it is no defense in a prosecution 
for contempt, that the officers of the company acted in good faith, and without any 
intention to violate an order of court. Thistlethwaite v. State, 149 Ind. 319. 

Action — Debt for lig'ht — Complaint. — In an action against a town, for a sum alleged 
to be due under the terms of a written contract for electric lights, the complaint contain- 
ing the averments, that under the terms of the contract the plaintiff furnished the 
defendant with lights, for which the defendant owed the plaintiff a certain sum which 
was due and unpaid, the complaint was good against demurrer, the plaintiff not being 
bound to anticipate and avoid any defense which defendant might have. Town of 
Petersburg v. Petersburg, etc., Co., 16 App. 151. 

1137. Poles and wires in streets. — 2. For the purpose of effecting 
such lighting, the common council of any such city, or the board of 
trustees of any such town, may provide by resolution or ordinance for 
the erection and maintenance, in the streets, alleys or other public 
places of said city or town, of such poles, wires, posts, masts, skeleton 
towers and other appliances or structures as may be necessary for such 
purpose. R. S. 1894, § 4302. 

Electric lig-ht companies occupying* streets— Duties and liabilities of company 
and city. — Where a corporation has been authorized by the city to erect and maintain 
poles, wires, lamps and cables in the streets for electric lights, it is the duty of such 
corporation to keep watch over these apphances, and the city is liable only in cases 
wherein, after actual or constructive notice of the existence of danger growing out of 
or caused by some defect in the poles, wires, or other appliances, it fails to use diligence 
in obviating the danger thus created ; the corporation occupying the streets for such 
purpose is not an insurer of the safety of the public against all dangers arising from 
the lawful placing in the streets of such appliances, but it is bound to know the dangers 
which may naturally be caused by such use of the streets, and to guard against the 
same by the exercise of all the foresight and caution which can be reasonably ex- 
pected of prudent men under such circumstances. City of Denver v. Sherret, 88 Fed. 
Eep. 226. 

Notice of defect.— If an employe of an electric light company occupying the streets, 
whose duty it is to report defects to the company, while in the line of his employment 
discovers defects, such discovery is notice to the company. City of Denver v. Sherret, 
88 Fed. Rep. 226. 

1138. Right to maintain may be granted. — 3 . Any such incorporated 
city or town is hereby authorized to grant by resolution or ordinance, 



739 NATURAL GAS LICENSE. § 1139 

under such restrictions as the common council of such city, or board 
of trustees of such town, ma}^ deem proper, to any person or corpora- 
tion, the right to erect and maintain, in the streets, alleys and other 
public places of such city or town, posts, poles, wires, and other nec- 
essary appliances, underground in said streets, alleys and other public 
places, for the purpose of supplying the inhabitants of such city or 
town with such electric or other light. R. S. 1894, § 4303. 

1139. Existing contracts valid. — 4. Any contract heretofore made 
by any such incorporated city or town for the lighting of its streets, 
alleys, and other public places, with the electric or other form of light, 
and any grant heretofore made b}^ any such city or town to any person 
or corporation of the right to erect and maintain poles, wires, masts, 
posts, or skeleton towers in the streets or other public places of said 
city or town, for the purposes specified in this act, which does not 
grant or confer any exclusive privileges, is hereby declared to be as 
valid for all purposes as if made after the taking 'effect of this act: 
Provided, That the terms of this section shall, affect no pending suit. 
R. S. 1894, § 4304. 

1140. Eight of way.— 5. Any corporation engaged in the business 
of lighting cities or towns, or the public or private places of their in- 
habitants, with the electric light, or other form of light, under the 
provisions of this act, shall have the right to acquire such real estate 
and rights of way as may be necessary for its business under the writ 
of assessment of damages as fully as if the act in relation to said writ 
were incorporated in this act and made part of the same: Provided, 
That in the assessment of damages, consideration shall be had for 
damages occasioned by the proximity of such poles, wires, masts, posts, 
or skeleton towers, to real estate or improvements thereon, as well as 
to damages arising from the appropriation of real estate for the pur- 
poses in this act set forth. R. S. 1894, § 4305. 

ARTICLE 9.~NATURAL GAS— LICENSE. 

SBC. 

1141. Regulation of natural gas — License. 

[Acts 1887, p. 36. In force March 7, 1887.] 

1141. Regulation of natural gas — License. — 1. That the boards of 

trustees of towns, and the common councils of cities, in this state, 
shall have power to provide by ordinance, reasonable regulations for 
the safe supply, distribution and consumption of natural gas within 
the respective limits of such towns and cities, and to require persons 
or companies to whom the privilege of using the streets and alleys of 
such towns and cities is granted for the supply and distribution of 
such gas to pay a reasonable license for such franchise and privilege. 
R. S. 1894, § 4306. 

Natural g'as— Reg-ulation of price,— This section does not confer upon municipal 
corporations the power to regulate the price at which natural gas shall be furnished, 
and such corporations have no such poAver. City of Rushville v. Rushville, etc., Co., 
132 Ind. 575, overruled; Lewisville, etc., Co. v. State, 135 Ind. 40. 

Same— (xas company— Use of streets for pipes— Ordinance— Maximum price of 
g"as. — A gas company Avhich uses the streets of a town for laying its pipes under gen- 



§ 1142 CITIES AND TOWNS. 740 

eral permission therefor contained in an ordinance under this section, Umiting the price 
to consumers to a certain maximum, will be enjoined from charging a consumer more 
than such maximum. Westfield, etc., Co. v. Mendenhall, 142 Ind. 538. 

Same — Injunction. — A municipal corporation has no power to grant a natural gas 
company the exclusive privilege of using its streets, and a town can not enjoin a natural 
gas company from using its streets upon the ground that it has conferred the exclusive 
right to their use upon another gas company, but it may do so on the ground that the 
defendant has not obtained a license so to do. This section requires that a general 
ordinance shall be adopted by municipal corporations, giving, upon equal terms, sub- 
stantially the same privileges to all companies. Citizens', etc., Co. v. Town of Elwood, 
114 Ind. 332. 

Neither a void grant of an exclusive privilege to use the town streets to one company, 
nor a refusal to grant a special privilege to another company, authorizes the latter 
company to use the streets. Citizens', etc., Co. v. Town of Elwood, 114 Ind. 332. 

Same— Leg-islative contract— Franchise to lay g-as mains in street— Subsequent 
impairment of contract— Conditions— Police power.— Power granted by a city to a 
gas company to lay, maintain, and repair gas pipes in its streets is a legislative contract, 
which the city, unless the right is reserved, can not take away or impair without the 
company's consent by any subsequent act. If the city grant a franchise it has the 
right to prescribe and impose terms and conditions, which become, when accepted and 
complied with, a binding contract. By such grant the city does not part with or bar- 
gain away its rights under the police power to protect the public health, the public 
morals and the public safety. City of Indianapolis v. Consumers', etc., Co., 140 Ind. 
107. 

Same— Limit of power to reg-ulate streets.— The exclusive power of a city to regu- 
late and control the use of its streets is not restricted to that of transit alone, but also 
extends to the laying of gas and water pipes, and to the promotion of the public health 
and convenience. City of Indianapolis v. Consumers', etc., Co., 140 Ind. 107; Cum- 
mins V. City of Seymour, 79 Ind. 491. 

Ordinance^Amendment—Hepeal— Natural g-as.— Where there is an ordinance reg- 
ulating the price to be charged by companies furnishing natural gas to consumers, a 
subsequent amendatory ordinance which increases the price to be charged by a particu- 
lar company for a certain time, does not repeal the prior ordinance, and, on the ex- 
piration of the time, the prior ordinance controls. Thistlethwaite v. State, 149 Ind. 319. 

Eminent domain — Power of reg'ulation, etc. — For a consideration of the powers of 
eminent domain, and to regulate corporations using streets for the supply and distribu- 
tion of natural gas, including the power to require such corporations to furnish gas to 
all consumers along the line of mains whenever applied for, see City of Eushville v. 
Rushville, etc., Co., 132 Ind. 575, overruled in part by Lewisville, etc., Co. v. State, 135 
Ind. 49; City of Indianapolis v. Consumers', etc., Co., 140 Ind. 107; Westfield, etc., Co. 
V. Mendenhall, 142 Ind. 538. 

ARTICLE 10.— PUBLIC PARKS. 

SEC. SEC. 

1142. Estabhshing parks — Condemnation 1145. Action on report — AppeaL 

of lands. 1146. Rules for laying out, etc. 

1143. Assessing damages— Report. 1147. Park tax— Issue of bonds. 

1144. Payment of damages. 

[Acts 1891, p. 116. In force March 5, 1891.] 

1142. EstaMisMng parks — Condemnation of lands, — 1. That the 
common council of any city or board of trustees of any incorporated 



741 PUBLIC PARKS. § 1143 

town, which shall b}^ ordinance or resolution decide to establish, locate, 
lay out or improve any public park, parks or grounds, or to make ex- 
tension of such parks or ground where they have heretofore been 
located, established, improved or commenced, shall have authority to 
locate such parks or public grounds with all appendages aud lay out 
and open such roads, streets, avenues or drives as may be required for 
such improvement, and in case the use of any lands, town lots, water 
rights or easements or of any pool, lake or natural stream of water 
shall be found necessary for the establishment, location, maintenance 
and improvement of such parks or grounds it shall be lawful for such 
common council or board of trustees by themselves or agent to enter 
upon and take possession of and condemn the same for these uses: 
Provided, That such lands, tow^n lots, water rights, pools, lakes and 
natural streams of water shall not be used for any other purpose than 
for such public parks or public grounds. For the purpose of such 
condemnation and use such common council or board of trustees 
shall have jurisdiction for five miles beyond the limits of such city or 
town: Provided further, That before such common council or board of 
trustees shall proceed to take possession of such lands, lots, water 
rights, easements, pools, lakes and natural streams of water for the 
purpose above mentioned, the}^ shall apply to the judge of the circuit 
court of the county to appoint three commissioners, residents of such 
city or tov/n, who shall be disinterested freeholders, to appraise and 
assess the damages accruing to the owners of any lands, lots, water 
rights, easements, pools, lakes and natural streams of water, so taken 
and condemned for said public purpose; and said commissioners shall, 
before they proceed to perform their duties as appraisers, take and sub- 
scribe an oath or affirmation, faithfully to perform all their duties as 
such appraisers, which shall be indorsed upon or attached to their ap- 
pointment, and file the same with the clerk of such city or town. Ten 
days' notice shall be given such commissioners, by said council or 
board of trustees through the city or town clerk of the appraisement to 
be made, giving a complete description of the premises to be viewed. A 
like notice shall be given by personal service, or by leaving the same 
with some person of suitable age at their place of abode to each of the 
owners or agents thereof, of lands, lots, water rights, easements, pools, 
lakes or natural streams to be so taken for such public parks or grounds 
as in civil cases. If the owners are unknown or non-residents of this 
state, publication of the same in one or more newspapers of the town, 
of general circulation, or by posting up written or printed notices in 
six public places in such city or town, if there be no newspaper pub- 
lished therein, for three weeks, shall be deemed equivalent to such 
personal service. R. S. 1894, § 4307. 
See a7ite, § 347, et seq. 

1143. Assessing damages — Report. — 2. Such commissioners, or a 
majority of them, shall, at the place and time indicated in such no- 
tice, proceed to an examination of such lands, lots, water rights, ease- 



§ 1144 CITIES AND TOWNS. 742 

merits, pools, lakes and natural streams so desired to be taken or con- 
demned for the use of such public parks or grounds, and shall then 
and there estimate the damages accruing to the owner. They shall 
view the premises and receive any evidence touching the questions 
before them, and may, for that purpose, administer oaths to witnesses 
examined in relation thereto. They shall make a report in writing of 
the amount of damage, if any accruing to each owner, and within ten 
days thereafter file the same with the clerk of such city or town. R. 
S. 1894, § 4308. 

1144. Payment of damages. — 3. When such report is filed,' as in 
the preceding section required, the common council or board of trust- 
ees, if they accept the assessment so made, shall tender or cause to be 
tendered to the owner of such lands, lots, water rights, easements, 
pools, lakes or natural streams, or their heirs or representatives, the 
damages awarded by such commissioners, or if not found within the 
city or town, or the award is not accepted, then the same shall be kept 
by the treasurer as a special deposit, subject to the order of such owner 
or his heirs or representatives. R. S. 1894, § 4309. 

1145. Action on report — Appeal. — 4. The common council or 
board of trustees shall, within twenty days from the filing of said re- 
port, either accept or reject the terms of the same in w^liole or in part, 
and all parties aggrieved by such report may appeal therefrom at any 
time within thirty days after the filing thereof, to the circuit court of 
the county, upon filing usual bond with the clerk of such city or town 
for the payment of costs, but no such appeal shall prevent any such 
city or town from proceeding with said appropriation, construction 
and improvement, as if no appeal had been taken. No other ques- 
tion shall be determined than the regularity of the proceedings in the 
suit, and the amount of damages sustained, R. S, 1894, § 4310. 

1146. Rules for laying out, etc. — 5. The common council of any 
city or board of trustees of any town which may have established, 
located or laid out any public park or grounds under the provisions 
of this act, is hereby authorized and empowered to pass such ordi- 
nances, rules and regulations with regard to the laying out, improve- 
ment, preservation and ornamenting and management of such parks 
and public grounds as they may deem necessary for that purpose. R. 
S. 1894, § 4311. 

Municipal corporation trustee for public— Cliang-e of trustee.— Where there has 
been laid out and filed a plat of land as an addition to a city, upon which plat a portion 
of the land is dedicated as a park, and there has been a sale of lots in reference to the 
plat, the dedication of the park thus effected is to the public and may be asserted by a 
town subsequently incorporated, which annexes such addition to its corporate limits, 
for a change of trustees does not defeat the dedication. Rhodes v. Town of Brightwood, 
145 Ind. 21. 

Dedication.— The principles governing the dedication of highways are equally ap- 
plicable to parks and other public grounds. Bennett, etc., v. Seibert, 10 App. 369 ; Doe 
V. President, etc., 7 Ind. 641 ; City of Logansport v. Dunn, 8 Ind. 378. 

An irrevocable dedication of land is effected by designating certain lands on a map 
filed in the county recorder's office as a "park," and by selling lots with reference to 



743 PAWNBROKERS. § 1147 

the map. Ehodes v. Town of Brightvvood, 145 Ind. 21; Bennett, etc., v. Seibert, 10 
App. 369. 

1147. Park tax — Issue of bonds, — 6. The common council of such 
cities and incorporated towns shall have the power to levy a tax not 
exceeding one cent on each one hundred dollars of property, to defray 
the expense of purchasing said park or parks, and for the purpose of 
improving the same, said common council shall have power to borrow 
money and issue the bonds of said cities or incorporated towns upon 
petition of a majority of the resident freeholders of such city or in- 
corporated town, and at a rate of interest not exceeding six (6) per cent, 
per annum, and the money so borrowed shall not be used or expended 
for any purpose other than the improvement of such park or parks. 
The common council of such city shall provide an interest fund by 
adding annually to the tax duplicate a tax sufficient to pay the interest 
on any debt created in pursuance of the provisions of this section, 
and shall, also, create a sinking fund by making and causing to be 
placed on the tax duplicate annually a levy of not less than one cent 
on each hundred dollars of the assessed value of property in such city 
or incorporated town, for the liquidation of the principal of such 
debt. [As amended. Acts 1893, p. 148. In force February 25, 1893.] 
R. S. 1894, § 4312. 

AETICLE 11.— PAWNBROKERS. 

[Acts 1891, p. 403. In force March 9, 1891.] 

1148. Pawnbrokers — License and regulating.— 1 . That common 
councils of cities and boards of trustees of incorporated towns, incorpo- 
rated under the laws of Indiana shall have the power to license and 
regulate the business of pawnbroking within the corporate limits of 
their respective cities or towns, and impose upon persons engaging in 
such business a license fee of not less than ten nor more than one 
hundred dollars. R. S. 1894, § 4313. 

Police power— License — City ordinance— Validity.— The business of a pawnbroker 
is subject to the police power of the state. Prior to the enactment of above section, as 
the state had not declared the business of a pawnbroker unlawful, nor conferred on mu- 
nicipal corporations the power so to do, the city had no power to require a license of 
pawnbrokers, and an ordinance requiring such license was void. Shuman v. City of 
Ft. Wayne, 127 Ind. 109. 

ARTICLE 12.— RAILROADS, RIGHT OF WAY. 

[Acts 1865, p. 51. In force March 6, 1865.] 

1149. Right of way by cities and towns. — 1. The trustees of any 
town or the common council of any city may grant to any person, 
corporation or company the right and privilege to locate and run a 
railroad track through said town or city, on the streets or alleys 
thereof, for the purpose of conveying coal into or through said town 
or city, under such restrictions and regulations as the trustees or com- 
mon council may require. R. S. 1894, § 5398. 

See ante, §218, note. Railroads — Street Railways, and post, § 1316, et seq. 



§ 1150 CITIES AND TOWNS. 744 

ARTICLE 13.— FIRE COMPANIES. 

SBC. SEC. 

1150. Exemption from juries and militia. 1152. Exemption from city tax. 

1151. Act cumulative. 

[1 R. S. 1852, p. 298. In force May 6, 1853.] 

1150. Exemption from juries and militia. — 1. Active members of 
any fire company organized under the corporate authority of any city 
or town shall be exempt from the performance of military duty in 
time of peace and from serving as jurors. R. S. 1894, § 6621. 

1151. Act cumulative. — 2. This act shall be taken as cumulative. 
R. S. 1894, § 6622. 

1152. Exemption from city tax. — 3. The real and personal property 
and the polls of active firemen of regularly organized fire companies, 
who shall have done the duty of firemen for one year preceding the 
time of listing, to an amount not exceeding five hundred dollars, shall 
be exempt from the payment of city or corporation taxes. R. S. 1894, 
§ 6623. 

See ante, § 260, and post, § 1312. 

ARTICLE 14.— BOARDS OF HEALTH. 

SEC. SEC. 

1153. Local boards of health — Secretary — 1155. Births — Deaths — Contagious die- 

Compensation and duties. eases — Burial permits. 

1154. Secretary — Duties. 1156. Misdemeanors — Penalty. 

[Acts 1891, p. 15. In force February 19, 1891.] 

1153. Local boards of health — Secretary — Compensation and duties 
— Removals, — 8. The trustees of each town, the mayor and common 
council of each incorporated city, except where a regularly constituted 
board of health by statute or by ordinance of such city exists or may 
hereafter be created, and the board of commissioners of each count}^ 
shall constitute a board of health ex officio, for each town, city and 
county, respectively of the state, whose duty it shall be to protect the 
public health by the removal of causes of diseases when known, and 
in all cases to take prompt action to arrest the spread of contagious 
and infectious diseases, to abate and remove nuisances dangerous to 
the public health, as directed or approved by the state board of 
health and perform such other duties as may from time to time be re- 
quired of them by the state board of health pertaining to the health of 
the people. They shall elect a secretary who shall be the health officer 
of the appointing board and who shall be a graduate of a reputable 
medical college recognized by the state board of medical registration 
and examination who if not already informed in hygiene and sanitary 
science shall immediately so inform himself according to the require- 
ments of the state board of health. He shall serve as secretary for four 
years from the first day of January next ensuing his election and shall 
receive as compensation from the county, city or town treasury by the 



745 BOARDS OF HEALTH. § 1154 

board electing him, to be paid quarterly on the first Monday in March, 
July, September and December, the sum of 1 J^ cents per capita up to and 
including 100,000 people, but his compensation shall not exceed $1,500 
per annum; the population to be determined from the school census 
of the year of the appointment by multiplying the number of school 
children as determined by the school census by 33^ : Provided, That 
no incorporated town or city shall pay its secretary less than $10.00 
per annum, and provided, further, That nothing herein shall prevent 
any incorporated city from establishing and maintaining a city board 
of health with proper health officers, the compensation of the members 
of such boards of health and health officers to be fixed by the city 
council of such city. The secretaries of boards of health who were 
elected for the term beginning January 1st, 1899, shall serve for four 
years from that date and shall be subject to this act. The state board 
of, health shall have power to remove at any time, any county, city or 
town health officer for intemperance, failure to collect vital statistics, 
obey rules and by-laws, keep records, make reports or answer letters 
of inquiry of said state board concerning the health of the people. 
Such removal, however, shall not be made until five days' notice of 
the charge or charges against such health officer shall have been 
mailed him, stating a time and place for hearing by the state board of 
health not less than one week later than the time of mailing such 
notice to such health officer. In case of death or removal of any town, 
city or county health officer, the vacancy thereby created, shall be im- 
mediately filled by the president of the board of trustees of the town, 
or the mayor of the city, or the county auditor as the case may be and 
such appointee shall hold office for the unexpired term of the health 
officer whose place he takes. The office of the secretary of the county 
board of health shall be at the county seat. All county, city and 
town health officers shall have and possess the statutory and common 
law powers of constables in all matters pertaining to the public health. 
[As amended. Acts 1899, p. 17. In force April 27, 1899.] 

See ante, § 124, clause 35. 

For full text of law concerning state and local boards of health, see R. S. 1894, § 6711, 
etseq.; Burns' Supp. 1897, § 6416; Acts 1899, p. 17, et seq. 

1154. Secretary — Duties, — 9. The board of health of each county 
shall be subordinate to the state board of health, and it shall be the 
duty of the secretary of such county boards to report such facts and 
statistics as may be required under instructions from and in accord- 
ance with blanks furnished by said board; and it shall be the duty of 
the secretaries of town and city boards of health to make reports of 
such facts and statistics as may be required under instructions from 
and in accordance with blanks furnished by the state board to the 
secretaries of the county boards of health in which such towns and 
city boards of health are subordinate. It shall be the duty of county 
boards of health to enforce all rules and regulations of the state board 
of health in their respective counties which may be issued from time 



§ 1155 CITIES AND TOWNS. 746 

to time for the preservation of the public health and for the preven- 
tion of endemic and epidemic and contagious diseases. [As amended, 
Acts 1899, p. 17. In force April 27, 1899.] 

1155. Births — Deaths — Contagious diseases — Reports of — Burial 
permits, — 10. It shall be the duty of all physicians and accouchers 
in the state to report to the secretary of the board of health of the 
town, city or county in which they may occur, all births and deaths 
and shall immediately report contagious diseases as are specified by 
the state board, which may occur under their supervision, with a cer- 
tificate of the cause of death, and such correlative facts as may be re- 
quired in the blank forms furnished by the state board of health. 
When any birth or death may occur with no physician or accoucher 
in attendance, then such birth or death shall be reported by the house- 
holder where or under whose observation such birth or death may oc- 
cur, with the cause of death if such be known. Any death coming 
under the jurisdiction or supervision of any coroner, shall be by him 
reported to the secretary of the board of health of the town, city or 
county in which death may occur, within three days after death for 
burial purposes, and such death so reported shall not be required to 
be reported by any other person. No undertaker, sexton or other per- 
son shall bury any human body until he has received a permit to do 
so from the county, city or town board of health or its duly appointed 
agent. No such permit shall be issued until there has been delivered 
to such board or agent, a certificate of death according to the form 
prescribed by the state board of health. In the event of any burial 
without a permit as herein provided, the coroner of the county where- 
in the illegal burial was made shall disinter the body, hold an inquest 
and within three days thereafter, make a return of his findings to the 
nearest local health ofiicer. [As amended. Acts 1899, p. 17. In 
force April 27, 1899.] 

1156. Misdemeanors — Penalty. — 14. Any person or persons, any 
board of health or the officers of any corporation who shall violate 
any of the provisions of this act shall be deemed guilty of a misde- 
meanor and upon conviction thereof shall be fined not less than ten 
nor to exceed one hundred dollars. [As amended, Acts 1899, p. 17. 
In force April 27, 1899.] 



CHAPTER 7. 
TOWNS. 



1. Incoeporation and organization. 

2. Government and powers. 

3. Taxation. 

4. Improvements of streets. 



art. 

5. Openings and vacations. 

6. Annexation of territory. 

7. Sewers. 

8. Town building. 



sec. 




sec. 


1157. 


Survey and map. 


1171. 


1158. 


Census. 


1172 


1159. 


Survey, map, and census made pub- 


1173 




lic. 


1174 


1160. 


Application to county board. 


1175 


1161. 


Hearing and order. 


1176 


1162. 


Notice to voters. 


1177 


1163. 


Polls, how long open. 


1178 


1164. 


Board of election. 


1179 


1165. 


Election, and effect thereof. 


1180 


1166. 


Districts. 




1167. 


Re-districting. 


1181 


1168. 


Notice of corporation election. 


1182 


1169. 


Annual election. 


1183 


1170. 


Voting place. 


1184 



ARTICLE 1.— INCORPORATION AND ORGANIZATION. 



Polls — Opening and closing. 
Inspector's duties. 
Officers to be elected. 
Who elected— Tie — Certificate. 
Clerk's duty. 

Trustees, how elected — Term. 
Vacancies. 
President — Oath. 
Corporate name. 

Order of incorporation, when con- 
clusive. 

How old town may incorporate. 
Debts not affected. 
Dissolution of town — Proceedings. 
Rights and contracts not affected. 



[1 R. S. 1852, p. 482. In force May 6, 1853.] 

1157, Survey and map. — 1. Persons intending to make application 
for the incorporation of a town, as hereinafter provided, shall cause 
an accurate survey and map to be made of the territory intended to be 
embraced within the limits of such town. Such survey shall be made 
by a practical surveyor, and shall show the courses and distances of 
the boundaries thereof, and the quantity of land contained therein — 
the accuracy of which survey and map shall be verified by the affida- 
vit of such surveyor, written thereon or annexed thereto. R. S. 1894. 
§ 4314. 

Charter — Rules of construction.— The charter or statute by which a municipal cor- 
poration is created or governed is its organic law, and the rules applicable to the inter- 
pretation of constitutions may be used in the construction thereof. Newcomb v. City 
of Indianapolis, 141 Ind. 451. 

See ante, § 45, general notes. 

(747) 



§ 1158 TOWNS. 748 

1158. Census. — 2. Such person shall cause an accurate census to 
be taken of the resident population of such territory, as it may be, on 
some day not more than thirty days previous to the time of presenting 
such application to the board of county commissioners, as hereinafter 
provided; which census shall exhibit the name of every head of a 
family residing within such territory on such day, and the number of 
persons then belonging to every such family; and it shall be verified 
by the affidavit of the person taking the same. R. S. 1894, § 4315. 

Census and affidavit — Objection to. — Where, hi a proceeding to incorporate a town, 
objection was made to the introduction in evidence of tlie census and affidavit thereto, 
"for the reason that there is no proof except the affidavit attached," the objection does 
not include the affidavit, but is an objection to the introduction of the census without 
additional proof of its correctness. Indiana, etc., Co. v. Wagner, 138 Ind. 658. 

[Acts 1855, p. 126. In force February 23, 1855.] 

1159. SuTYey, map, and census made public. — 3. Such survey, 
map, and census, when completed and verified as aforesaid, shall be 
left at some convenient place within said territory, for examination by 
those having interest in said application, for a period of not less than 
twenty days. R. S. 1894, § 4316. 

[1 E. S. 1852, p. 482. In force May 6, 1853.] 

1160. Application to county board. — 4. Such application shall be 
by petition, subscribed by the applicants, and also by not less than 
one-third of the whole number of qualified voters residing within 
such territory; and said petition shall set forth the boundaries thereof, 
the quantity of land embraced according to the survey, and the resi- 
dent population therein contained, according to said census taken ; 
and the said petition shall have attached thereto, or written there- 
upon, affidavits verifying the facts alleged therein; and it shall be 
presented at the time indicated in the notice of such application, or 
as soon thereafter as the board can receive and consider the same. 
R. S. 1894, §4317. 

Unplatted lands. — Unplatted lands may be included within the boundaries of a town 
which it is proposed to incorporate. Indiana, etc., Co. v. Wagner, 138 Ind. 658, 666. 

1161. Hearing and order. — 5. The board of county commissioners, 
in hearing such application, shall first require proof, either by afiida- 
vit or oral examination of witnesses before them, that the said survey, 
map, and census were subject to examination in the manner and for 
the period required by section 3 of this act; and if said board be 
satisfied that the requirements of this act have been fully complied 
with, they shall then make an order, declaring that such territor}^ 
shall, with the assent of the qualified voters thereof, as hereinafter 
provided, be an incorporated town, by the name specified in the ap- 
plication aforesaid, which name shall differ from that of every other 
town jn this state; and they shall also include in such order a notice 
for a meeting of the qualified voters resident in said territory, at a con- 



749 INCORPORATION AND ORGANIZATION. § 1161 

venient place therein, to be by them named, on some day within one 
month therefrom, to determine whether such territory shall be an in- 
corporated town. R. S. 1894, § 4318. 

General laws providing conditions upon which cities and towns may be incorporated 
as municipal corporations, with or without the consent of those interested, and vesting 
the power in judicial bodies to determine whether such conditions exist, and, if so, to 
order such incorporation, are valid. Woolverton v. Town of Albany, Ind. Sup. Ct., 
Jan. 5, 1899; Paul v. Town of Walkerton, 150 Ind. 565; Forsythe v. City of Hammond, 
142 Ind. 505, 516, 519; Forsythe v. Hammond, 164 U. S. 706. 

In such case the creation of the corporation is not the act of the court or other body, 
but is the act of the law. If the facts exist under the law, the board of commissioners 
or the court of appeals has no discretion and can exercise none, but must order the in- 
corporation of such town or city. Woolverton v. Town of Albany, Ind. Sup. Ct., Jan. 
5, 1899 ; Forsythe v. City of Hammond, 142 Ind. 505, 517, 518. 

Boundaries— Legislative and Judicial functions.— The creation, enlarging and con- 
traction of boundaries of municipal corporations are legislative and not judicial func- 
tions, and may be exercised by the legislature without the consent and against the re- 
monstrance of those inte];ested. AYoolverton v. Town of Albany, Ind. Sup. Ct., Jan. 5, 
1899 ; Paul v. Town of Walkerton, 150 Ind. 565. 

Preliminary steps — Jurisdictional facts —Proof .—The preliminary steps and juris- 
dictional facts upon hearing before the board of county commissioners may be by affi- 
davits or oral examination of witnesses. Indiana, etc., Co. v. Wagner, 138 Ind. 658. 

Commissioners — Jurisdiction— Petition. — The pendency of the petition gives the 
county commissioners jurisdiction of the subject-matter thereof and that jurisdiction 
can not be ousted by the adverse action of the city council of an adjoining city. After 
the filing of a petition for the incorporation of a town, the territory embraced therein 
can not be annexed to an adjoining city by a vote of the city council. Taylor v. City 
of Ft. Wayne, 47 Ind. 274. 

Same— Proofs — Order. — Where a petition has been filed by proper parties before 
the board of commissioners for the incorporation of a town, and the petition conforms 
to the requirements of the statute, it is the duty of the commissioners to hear the proofs, 
and, if satisfied that the requirements of the law have been complied with, to make an 
order declaring that the territory embraced in the petition shall, with the assent of the 
qualified voters thereof, be an incorporated town, by the name specified in the petition ; 
and after the election has been properly certified by the inspectors of the election it is 
the duty of the commissioners to make an order declaring that such town has been in- 
corporated by the name adopted. Taylor v. City of Ft. Wayne, 47 Ind. 274. 

Order of election— Interlocutory order— No appeal.— An appeal will not he from an 
order of the board that an election be held to determine whether the town shall be in- 
corporated, as the order is not a final one, but still leaves the case pending in the com- 
missioners' court. Indiana, etc., Co. v. Wagner, 134 Ind. 698. 

Former order— Judicial knowledg'e.— On the hearing of the petition, the board can 
not take judicial cognizance of its own orders or judgment in a different case on the 
same subject. Grusenmeyer v. City of Logansport, 76 Ind. 549; La Plante v. Lee, 83 
Ind. 155. 

Jurisdiction — Collateral attack. — The judgment and proceedings of the board of 
commissioners, and the regulations of the organization of the town as a corporation can 
not be attacked or questioned in collateral proceedings. Grusenmeyer v. City of Lo- 
gansport, 76 Ind. 549; Hon v. State, 89 Ind. 249; City of Delphi v. Startzman, 104 Ind. 
343; Town of Cicero v. Williamson, 91 Ind. 541 ; City of Terre Haute v. Beach, 96 Ind. 
143. 

Appeal. — An appeal lies from an order of the board for the incorporation of a town. 



§ 1162 TOWNS. 750 

and from an order dismissing the petition for incorporation. The decision in such cases 
is judicial, and not merely administrative or legislative. For cases overruled, see Gru- 
senmeyer V. City of Logansport, 76 Ind. 549; Indiana, etc., Co. v. Wagner, 134 Ind. 698. 

Same— Appeal— Circuit Court.— Upon appeal the circuit court may make a final de- 
termination of such proceeding, and cause the same to be executed, or may send the 
same down to the board with directions how to proceed, and may enforce compliance 
by the board. Grusenmeyer v. City of Logansport, 76 Ind. 549. 

Preliminary steps — Appeal. — The preliminary steps and jurisdictional facts made to 
appear before the board of commissioners in a proceeding to incorporate a town may be 
made to appear in the circuit court on appeal by affidavits or oral examination of wit- 
nesses. Indiana, etc., Co. v.. Wagner, 138 Ind. 658. 

Same— Transcript. — Where a transcript of the case on appeal in the circuit court was 
introduced in evidence there was no prejudicial error. Indiana, etc., Co. v. Wagner, 
138 Ind. 658. 

Same— Evidence— Census and affidavit.— Where, in a proceeding to incorporate a 
town, objection was made to the introduction in evidence in trial upon appeal of the 
census and affidavit thereto, *' for th^ reason that there is no proof except the affidavit 
attached," the objection does not include the affidavit, but is an objection to the intro- 
duction of the census without proof of its correctness. Indiana, etc., Co. v. Wagner, 
138 Ind. 658. 

Issues raised before the board of commissioners are amendable upon appeal. Harris 
V. Minege, 151 Ind. 70. 

Appeal bond — Sufficiencj^ — An appeal bond signed only by the appellants is not a 
compliance with the statute granting appeals, upon filing bond with surety, and is cause 
for dismissal. Harris v. Millege, 151 Ind. 70 ; McVey v. Heavenridge, 30 Ind. 100. 

1162. Notice to voters. — 6. The board shall give ten days' notice 
of such meeting by publication in a newspaper, if one be printed in 
such territory, and by posting up copies of said notice, not less than 
ten in number, at the most public places in said proposed incorporated 
town. R. S. 1894, § 4319. 

1163. Polls, how long open. — 7. At the meeting of the qualified 
voters, as herein provided, polls shall be opened at nine o'clock in the 
forenoon of such day, and shall be kept open until four o'clock in the 
afternoon, when they shall be closed. R. S. 1894, § 4320. 

1164. Board of election. — 8. The voters at such meeting shall first 
proceed to the election of three inspectors, who, after being duly chosen 
and qualified, and having elected one of their number clerk, shall, 
without delay, proclaim to the meeting that the poll is now opened, 
and that they are ready to receive the ballots of the voters. R. S. 
1894, § 4321. 

1165. Election, and effect thereof. — 9. The qualified voters of said 
territory shall vote by ballots having thereon the word ''Yes" or the 
word "No." And if a majority of the ballots given at such meeting 
shall have thereon the word "No," the voters of such territory shall 
be deemed not to have assented to the incorporation thereof as a town, 
and no further proceedings shall be had in relation thereto; but if a 
majority of such ballots shall have thereon the word "Yes," such ter- 
ritory shall, from that time, be deemed an incorporated town, to have 
continuance thereafter by the name and style specified in the order 
made by the board of county commissioners, as hereinbefore provided. 



751 INCORPORATION AND ORGANIZATION. § 1165 

Aud the inspectors of such meeting shall make a statement showing 
the whole number of ballots given at such meeting, the number hav- 
ing the word "Yes" thereon, and the number having the word ''No" 
thereon; which statement shall be verified by the affidavit of such in- 
spectors, and shall be returned to such board of commissioners at 
their next session, who, if satisfied of the legality of such election, 
shall make an order declaring that said town has been incorporated by 
the name adopted, which order shall be conclusive of such incorpora- 
tion in all suits by or against such corporation; and the existence of 
said corporation, by the name and style aforesaid, shall thereafter be 
judicially taken notice of in all courts and places in this state, with- 
out specially pleading or alleging the same. R. S. 1894, § 4322. 

Objections — Appearance. — Parties in interest may appear before the county commis- 
sioners and object to the legaUty of the election. Where persons appear before the 
commissioners and move to dismiss the proceeding, this will constitute an appearance. 
Harris v. Millege, 151 Ind. 70. 

Incorporation— Evidence— Judicial knowledg^e. — Courts take judicial knowledge of 
the incorporation of towns, and proof thereof is not necessary. Town of Albion v. 
Hetrick, 90 Ind. 645 ; Stultz v. State, 65 Ind. 492 ; Pennsylvania Co. v. Horton, 132 Ind- 
189,^95; Mode v. Beasley, 143 Ind. 306; 1 Dillon Munic. Corp. (4th ed.), §83; 1 Beach 
Pub. Corp., §74. 

Same — Statutes— History — Population.— Courts of this state take judicial notice of 
its statutes, and also of its history, which includes the population of its cities and towns 
as shown by the last census of the United States. Stultz v. State, 65 Ind. 492; State v. 
Gramelspacher, 126 Ind. 398, 403; 1 Beach Pub. Corp., §74. 

Same— Town and city— Special and g-eneral charter.— The courts take judicial 
notice of towns incorporated under a special charter ; also, that thereafter the town be- 
comes incorporated under the general law of the state as a city. Stultz v. State, 65 Ind, 
492. 

Same— Name— Location— Limits and boundary,— The courts take judicial notice of 
the existence and names of cities and towns, and, in some general sense, of their loca- 
tions, but not of their exact limits or boundaries. Whether a given location or 
described territory is within the limits of any town or city in the state, is a matter of 
averment and proof. Grusenmeyer v. City of Logansport, 76 Ind. 549 ; Indianapolis, 
etc., R. Co. V. Stephens, 28 Ind. 429; Louisville, etc., R. Co. v. Hixon, 101 Ind. 337; 
Strosser v. City of Ft. Wayne, 100 Ind. 443; City of Indianapolis v. McAvoy, 86 Ind. 
587 ; Shea v. City of Muncie, 148 Ind. 14. 

Charter of incorporation— Special and g-eneral acts.— The charter of a municipal 
corporation, whether a general or special act, may be amended or repealed at the pleas- 
ure of the legislature. Wiley v. Corp. of Bluffton, 111 Ind. 152; Corp. of Bluffton v. 
Studebaker, 106 Ind. 129; City of Evansville v. Summers, 108 Ind. 189; State v. 
Kolsem, 130 Ind. 434 ; Wilkins v. State, 113 Ind. 514. 

See ante, § 46 and notes. 

Incorporation— When complete.— A town does not become incorporated until the 
result of the election has been reported to the county board and an order made declar- 
ing the incorporation established. State v. Arnold, 38 Ind. 41. 

School corporation.— An incorporated town is a municipal corporation for school 
purposes, distinct from the civil town — and as such school corporation may contract. 
School Town of Princeton v. Gebhart, 61 Ind. 187. See post, § 1507 and notes. 

Cities— Towns.— The word "town," as used in the constitution of the state, and in 
some statutes, is generic, and includes cities. City of Indianapolis v. Higgins, 141 Ind. 



§ 1166 TOWNS. 752 

1 ; Flinn v. State, 24 Ind. 286 ; State v. Craig, 132 Ind. 54 ; State v. Denny, 118 Ind. 449 ; 
Harvey v. Osborn, 55 Ind. 535. 

A town is not always a city, but a city is always a town. Harvey v. Osborn, 55 
Ind. 535. 

Action— Presumption as to incorporation. — In an action by or against a town it will 
be presumed, nothing to the contrary appearing, that the town has been organized un- 
der the general law of the state for the incorporation of towns. Town of Centerville v. 
Woods, 67 Ind. 192; Town of Brazil v. Kress, 55 Ind. 14; Walter v. Town of Columbia 
City, 61 Ind. 24, 28 ; Sparling, etc., v. Dwenger, 60 Ind. 72, 80 ; Cowley v. Town of Eush- 
ville, 60 Ind. 327, 331 ; Kratli v. Larrew, 104 Ind. 363, 365 ; City of Logansport v. Wright, 
25 Ind. 512; Lowrey v. City of Delphi, 55 Ind. 250; Hilgenberg v. Wilson, 55 Ind. 210. 

Incorporation— Prescription. — The exercise for twenty years of the corporate pow- 
ers of a town over a defined territory, with the knowledge of the public, no question 
having been made as to the authority of the town, was a waiver of irregularities in its 
organization, and cured inaccuracies in the original survey and map, and was conclu- 
sive evidence of its incorporation. Worley v. Harris, 82 Ind. 493, 496; Strosser v. City 
of Ft. Wayne, 100 Ind. 443, 450. 

[Acts 1857, p. 84. In force February 19, 1857.] 

1166. Districts. — 10. Such inspectors, when they shall have re- 
turned the statement as aforesaid, shall next proceed to divide said 
town into not less than three nor more than seven districts, having 
due regard to the equitable apportionment of population among the 
same and the conveniency and contiguity of such district. R. S. 1894, 
§ 4323. 

1167. Re -districting. — 2. Any town heretofore incorporated under 
the act approved as aforesaid, may, at any time ten days before the 
annual election, re-district the town according to the preceding section, 
for the purpose of electing officers for said town. R. S. 1894, § 4324. 

[1 E. S. 1852, p. 482. In force May 6, 1853.] 

1168. Notice of corporation election. — 11. They shall also give ten 
days' notice by publication in a newspaper, if one be printed within 
such town, or, if there be no newspaper, then by posting such notices 
in five public places therein, of an election to be held in such town, 
for the purpose of electing officers thereof, naming the place therein 
and the day upon which the same shall be had; but such day named 
shall be within twenty days from the posting of such notices. Every 
subsequent notice of a corporation election shall be given, in like man- 
ner, by the clerk of said town. R. S. 1894, § 4325. 

1169. Annual election. — 12. An election for officers of said town, 
after the first election, shall be held annually on the first Monday in 
May of each year; and at every such election the preceding board of 
trustees, or any three of them, shall act as the inspectors thereof. R. 
S. 1894, § 4326. 

Inspectors— Collateral attack.— Where in a suit by a town to recover the Hcense fee 
required by a town ordinance to be paid by retailers of liquors, it was answered that 
the election at which the trustees who passed the ordinance were elected, was not con- 
ducted by the then trustees, as inspectors, but by disqualified persons, etc., the answer 
was bad, as the question of the right of the trustees to exercise their office could not be 



753 INCORPORATION AND ORGANIZATION. § 1170 

questioned collaterally, and the answer did not negative the fact that they were trustees 
de facto. Eedden v. Town of Covington, 29 Ind, 118. 

[Acts 1883, p. 29. In force February 26, 1883.] 

1170. Yoting place. — 1. That in town elections there shall be but 
one place of voting, which shall be centrally located in the town, and 
designated in the notice of such election given by the town clerk: 
Provided, That the trustee of any town may, if public convenience and 
public good require, establish by ordinance a precinct in each ward of 
such town. R. S. 1894, § 4327. 

[1 R. S. 1852, p. 482. In force May 6, 1853.] 

1171. Polls — Opening and closing. — 13. At all elections in said 
town, the polls shall be open at nine o'clock in the forenoon, and 
shall not be finally closed until four o'clock in the afternoon of said 
day. R. S. 1894, § 4328. 

[Acts 1881 S., p. 703. In force April 14, 1881.] 

1172. Inspector's duties. — 14. Such inspectors shall preside at 
such first election, and be inspectors thereof; and, in the receiving 
and canvassing of votes, shall be governed by the laws then existing, 
so far as they are applicable for the election of township officers: 
Provided, however, In case of absence of any of the inspectors from the 
place of holding such election at nine o'clock in the forenoon, the 
qualified voters of the town present shall proceed to appoint such in- 
spector, or inspectors, whose duties shall be the same as if they had 
been presiding at the election held for the purpose of incorporation. 
R. S. 1894, § 4329. 

[Acts 1873, p. 218. In force March 10, 1873.] 

1173. Officers to be elected, — 15. There shall be elected, at the 
first and at every subsequent election, one trustee from each district 
in said town, and also a clerk and treasurer, who shall respectively 
hold their offices until the first Monday in May next following, or until 
their successors are elected and qualified: Provided, That nothing 
herein contained shall prevent the respective offices of clerk and treas- 
urer from being held by one and the same person. R. S. 1894, § 4330. 

Trustees— How elected— Residence— Inspectors.— A trustee must be elected for 
each district of an incorporated town, but each must be elected by the voters of the 
whole town. The preceding board of trustees, or a majority of them, must act as the 
inspectors at the election and the certijQcates of election must be signed by the trustees 
present at the election who have acted as inspectors. Those acting as trustees must 
each reside in his proper district, and be legally qualified. Millikin v. Town of Blocm- 
ington, 49 Ind. 62. 

Town trustees not the corporation.— The trustees of a town represent but do not 
constitute the corporation, and, although they have violated their duty, they may 
invoke the aid of the courts to protect its rights. Citizens', etc., Co. v. Town of Elwood, 
114 Ind. 332; City of Valparaiso v. Gardner, 97 Ind. 1, 6. 

Exercise of duties— CoHateral attack.— The right of the trustees to exercise their 
office can not be questioned collaterally. Eedden v. Town of Covmgton, 29 Ind. 118. 
CiT. AND To.— 48 



§ 1174 TOWNS. 754 

Town trustee— Elig-ible as school trustee.— A town trustee is eligible for election to 
the office of school trustee. He is not rendered ineligible to the office of school trustee 
by being a member of the board which elects him. The two offices are not inconsistent 
offices. State v. Meyer, 60 Ind. 288. 

Officer's interest in contract.— The statutory provisions forbidding city officers from 
purchasing any bond, order, claim or demand against the city, or having any interest 
in contracts for public improvements, are not found in the law concerning towns. 
Town of Tipton v. Jones, 77 Ind. 307, 316. 

Contracts of officers void. — But contracts between town officers and the town relat- 
ing to public work are void. Case v. Johnson, 91 Ind. 477; Benton v. Hamilton, 110 
Ind. 294; Pratt v. Luther, 45 Ind. 250; see post, § 1420 and note. 

A trustee can not occupy the double and inconsistent position of vendor and pur- 
chaser, and where one trustee of a town, in connection with a partner, contracted with 
the other trustees to sell to the town a tract of land for a cemetery, and the vendors 
executed a deed and received orders on the town treasurer for the money, the contract 
was voidable at the election of the vendee. Pratt v. Luther, 45 Ind. 250. 

Officers' salaries — Allowances. — An officer is entitled only to the fees allowed by the 
statute, and before any allowance is made him he must point out the particular statute 
authorizing the allowance. Legler v. Paine, 147 Ind. 181 ; Stiffler v. Board, etc., 1 App. 
368; Noble v. Board, etc., 101 Ind. 127; Wood v. Board, etc., 125 Ind. 270. 

Mandamus. — Mandamus is the proper remedy to coerce an officer to discharge a pub- 
lic duty, and if it is a matter in which the people in general are interested it is not 
required that the applicant show any legal or special interest in the result sought to be 
obtained. It is only necessary that he be a citizen, interested in common with other 
citizens in the execution of the law. Wampler v. State, 148 Ind. 557 ; 2 Dillon Munic. 
Corp., § 823, et seq.; 2 Beach Pub. Corp., § 1547, et seq. 

1174:4 Who elected — Tie — Certificate. — 16. The persons having the 
greatest number of votes shall be declared elected as such trustees, 
and the persons who received the greatest number of votes, respect- 
ively, for clerk and treasurer, as designated by the ballot for such 
office, shall be declared so elected ; and if two or more shall have an 
equal and highest number of votes, and there be no choice, the in- 
spectors of such election shall forthwith determine, by lot, which shall 
be deemed elected. And it shall be the further duty of such inspect- 
ors to make a certified statement, over their own signatures, of the 
persons elected to fill the several offices in said town, and to file the 
same with the clerk of the circuit court in the county thereof, within 
ten days from the day of such election. And no act or ordinance of 
any board of trustees chosen at such election shall be valid until the 
provisions of this section are substantially complied with. R. S. 
1894, §4331. 

Town trustees— Certificate of election— Authority.— Persons elected as trustees of 
a town have no power to act officially until a certificate of their election has been filed 
in the office of the clerk of the circuit court. Pratt v. Luther, 45 Ind. 250; Dinwiddle 
v. President, etc., 37 Ind. 66. 

Injunction.— Where no certificate of election has been filed with the clerk, an ordi- 
nance passed by the persons elected as trustees gave no authority for an improvement 
in the town at the expense of the property holders, and an injunction should be granted 
on their application. Pratt v. Luther, 45 Ind. 250; Dinwiddie v. President, etc., 37 
Ind. 66. 



755 INCORPORATION AND ORGANIZATION. § 1175 

Curative act.— The act of March 13, 1875 (S., p. 74), legahzes the acts of boards of 
trustees and other officers of incorporated towns, where the inspectors of elections had 
failed to make the return of the election, and is constitutional and valid. Gardner v. 
Haney, 86 Ind. 17. 

Said act is retrospective and curative only, and has no prospective force. Lucas v. 
State, 86 Ind. 180. 

Certilicate of electiou after ten days— Effect. — If the certificate of election of the 
trustees of the town is filed with the clerk after the time fixed by law, the effect is to 
legalize and validate, from their inception, ordinances and contracts for street improve- 
ments previously made by the board of trustees of such town, and to authorize the re- 
covery of assessments thereunder. For cases distinguished and overruled, see opinion. 
Jennings v. Fisher, 103 Ind. 112. 

Same— Failure to make certificate— Mandate. — Upon the failure and refusal of the 
inspector to make the necessary return he may be compelled to do so by mandate. 
Enos V. State, 131 Ind. 560. 

Same — Presumption as to public officer. — In an action against an inspector of elec- 
tion to compel him to make out and file with the clerk the certificate of election, it must 
be presumed, in the absence of a showing to the contrary, that he and the judge of the 
election did their duty and that such return was made. Public officers are presumed to 
have done their duty until the contrary is shown. Enos v. State, 131 Ind. 560. 

[1 R. S. 1852, p. 482. In force May 6, 1853.] 

1175. Clerk's duty. — 17. It shall be the duty of the clerk of the 
proper county to make a record of such certified statement; for which 
service there shall be paid the same fee as is allowed clerks for similar 
services in other cases. R. S. 1894, § 4332. 

[Acts 1881 S., p. 708. In force March 25, 1881.] 

1176. Trustees, how elected — Term. — 1. At the next ensuing May 
election to be held for the election of town officers, as now provided 
by law, the town trustees shall be chosen in the following manner, to 
hold their offices for the time herein set forth. In a town where there 
are three trustees to be elected, the person receiving the greatest num- 
ber of votes shall hold his office for two years from and after said 
election, and the two other persons receiving the next greatest number 
of votes each shall hold their offices for one year from said election. 
And where there are four trustees to be elected, the two persons re- 
ceiving the greatest number of votes each shall hold their offices for 
two years, and the two persons receiving the next greatest number of 
votes each shall hold their offices for one year. And where there are 
five trustees to be elected, the two persons receiving the greatest num- 
ber of votes each shall hold their offices for two years, and the three 
persons receiving the next greatest number of votes each shall hold 
their offices for one year. And where there are six trustees to be 
elected, the three persons receiving the greatest number of votes shall 
hold their offices for two years, and the three persons receiving the 
next greatest number of votes shall hold their offices for one year. 
And where there are seven trustees to be elected, the three persons re- 
ceiving the greatest number of votes shall hold their offices for two 
years, and the four persons receiving the next greatest number of 



§ 1177 TOWNS. 756 

votes shall hold their offices for one year. And it is further provided, 
That at the May elections for the election of town officers, succeeding 
the May election of one thousand eight hundred and eighty-one, the 
town trustees of the districts where a vacancy will occur, by reason of 
the expiration of the term, shall be elected for the term of two years 
each. In all cases where two or more persons receive an equal num- 
ber of votes^ and there be no choice, the inspector shall determine, as 
is now provided by law, as to who is elected. R. S. 1894, § 4333. 

[1 R. S. 1852, p. 482. In force May 6, 1853.] 

1177. Yacancies. — 18. A vacancy occurring in the board of trus- 
tees, or in any corporation office, shall be filled by appointment, at a 
special meeting of the trustees called for that purpose; but such ap- 
pointment shall be made from the district, if a trustee [be appointed] , 
in which the vacancy has occurred, and shall, in no case, extend be- 
yond the annual election provided for in this act. R. S. 1894, § 4334. 

1178. President — Oath.- — 19. The board of trustees, chosen as 
aforesaid, shall elect a president from their own body; and such pres- 
ident, trustees, and all other officers elect, shall, within five days after 
such election, take and subscribe, before some person authorized to 
administer the same, the usual oath or affirmation for the faithful per- 
formance of the duties of their respective offices. R. S. 1894, § 4335. 

1179. Corporate name.- — 20. The president and trustees of such 
town, and their successors in office, shall constitute a body politic and 
corporate, by the name of the " Town of ," and shall be capa- 
ble, in law, to prosecute and defend suits to which they are a party. 
R. S. 1894, § 4336. 

[Acts 1859, p. 206. In force March 4, 1859.] 

1180. Order of incorporation, when conclusive. — 1. In all cases 
where the inhabitants of any town in this state have taken steps to 
incorporate the same under ''An act for the incorporation of towns, 
defining their powers, providing for the election of the officers thereof, 
and declaring their duties," approved June 11, 1852; and where the 
board of county commissioners of the county in which such town is 
situated have, in pursuance of such proceedings, made a final order 
declaring such town incorporated by the name designated, in pur- 
suance of § 9 of the above recited act, such order shall be con- 
clusive, and such town shall be deemed and taken to be an incor- 
porated town: Provided, That nothing in this act shall be so con- 
strued as to affect any case where an appeal has been taken from such 
order, or where an appeal may hereafter be taken from such order 
within the time prescribed by law. R. S. 1894, § 4337. 

[1. K. S. 1852, p. 482. In force May 6, 1853.] 

1181. How old town may incorporate.— 56. Any town heretofore 
incorporated may, by a resolution of the board of trustees or other 
municipal board thereof, entered upon the record book of the corpora- 



757 INCOKFORATION AND ORGANIZATION. § 1182 

tion, become incorporated under this act; but the same shall be deemed 
a surrender of all the rights and franchises acquired under any former 
act of incorporation or acts amendatory thereto. A copy of such 
resolution shall be filed with the clerk of the circuit court of the 
proper county, and entered by him of record. Trustees and other 
officers of such incorporated town by whatever name designated, per- 
forming duties of a like nature to those required by officers created 
by this act, shall continue to be the officers of such town, by the name 
as specified in this act, until superseded by the annual election. R. 
S. 1894, § 4338. 

Rig'Iit to reincorporate— Town of Clarksville.— The right given to towns to reincor- 
porate, by this section, is still effective as to the town of Clarksville, notwithstanding 
the act of IMarch 3, 1883, repealing certain amendatory acts of the charter of said town, 
and pertaining to the incorporation of towns on the out-lots of Clarksville. State v. 
Hertsch, 136 Ind. 293. 

1182. Debts not affected.-— 58. No debt or liability due to or from 

any incorporated town shall be impaired by reason of such town be- 
ing brought within the provisions of this act, and becoming incor- 
porated under it. R. S. 1894, § 4339. 

1183. Dissolution of town — Proceedings.™ 53. When an applica- 
tion, signed by one-third of the legal voters of any incorporated town, 
shall be presented to the board of trustees, in writing, asking for a 
dissolution of the corporation, setting forth the reasons therefor, it 
shall be competent for said board, if they deem the reasons good, to 
call a meeting of the voters of said town, by giving ten days' notice 
thereof, as provided in this act, to determine whether such corpora- 
tion shall be dissolved. The board of trustees shall preside at such 
meeting, and a poll shall be opened, as at other corporation elections, 
and the voters shall vote by ballot, *'Yes*' or *'No." If a majority of 
all the votes given shall have thereon the word '^Yes,"and such votes 
shall have been given by two-fifths of all the legal voters in such 
town, a statement of the vote, signed by the president and attested by 
the clerk, shall be filed in the clerk's office of the county, and such 
town shall, at the expiration of six months from the time of holding 
such meeting, cease to be a corporation, and the property belonging 
to such corporation, after the payment of its debts and liabilities, shall 
be disposed of in such manner as a majority of the voters of such 
town, at any special meeting thereof, may direct. R. S. 1894, 
§ 4340. 

1184. Rights and contracts not affected. — 54. No such dissolution 
shall affect the rights of any person in any contract or agreement to 
which such corporation is a party. R. S. 1894, § 4341. 

Dissolution of town corporations.— The mode prescribed by statute for the dissolu- 
tion of town corporations should be followed, and the courts will not dissolve such a 
corporation by other methods when there is a doubt as to the right. State v. Husband, 
26 Ind. 308. 



§ 1185 TOWNS. 758 

ARTICLE 2.— GOVERNMENT AND POWERS. 

SEC. S^C- 

1185. Official bonds. 1214. Tax to pay bonds. 

1186. Books, etc., to successor. 1215. Sale of lights. 

1187. Duties of treasurer. 1216. Increase of capacity of plant. 

1188. Publication of treasurer's settle- 1217. Water-works, lighting plant, street 

i^Qiit. railroad, telephone and telegraph 

1189. Duties of clerk. companies — Franchises and con- 

1190. Marshal. tracts — Ordinances for — When take 

1191. Marshal. effect— Referendum. 

1192. Powers of marshal— Fees. 1218. Petition to submit to voters. 

1193. Deputy marshals. 1219. Contents of petition. 

1194. Bond and compensation. 1220. Special election— When required. 

1195. Duties of trustees as to streets. 1221. When submitted at regular election. 

1196. Fire wardens. 1222. Majority of votes cast necessary for 

1197. Pay of officers. approval —Re-enactment. 

1198. Town suing— Proof. 1223. Notice of election. 

1199. Special meeting of voters. 1224. Ballots. 

1200. Powers of trustees. 1225. Penalty for making false affidavit. 

1201. Licensing and regulating business. 1226. Penalty for town officer failing to 

1202. Shade trees. comply. 

1203. Fire limits. 1227. Election laws apply. 

1204. Lighting streets. 1228. Public grounds and wharves. 

1205. Tax for lighting. 1229. Money, how appropriated. 

1206. Tax to pay for electric lights. 1230. Claims. 

1207. Electric light plant— Construction. 1231. Money, how drawn. 

1208. Committee to ascertain number of 1232. Loans. 

lights. 1233. Bonds. 

1209. Report— Action of board. 1234. Proceeds paid treasurer. 

1210. Advertising for proposals — Bids. 1235. Tax to pay interest. 

1211. Letting of contract. 1236. Fines. 

1212. Bonds — Issue and sale. 1237. Suits — Imprisonment. 

1213. Superintendent. 

[1 R. S. 1852, p. 482. In force May 6, 1853.] 

1185. Official bonds. — 28. The clerk, treasurer and marshal shall, 
within ten days from their election or appointment, each and severally 
give bonds, payable to the state of Indiana, with freehold sureties, to 
such an amount as the board of trustees shall direct; but the bonds of 
the treasurer and marshal shall, respectively, be for double the amount 
of the estimated tax duplicate for the current year. R. S. 1894, § 4342. 

1186, Books, etc., to successor. — 29. All books, vouchers, moneys, 
or other property belonging to the corporation, and in charge or pos- 
session of any officer of the same, shall be delivered to his successor 
when qualified. R. S. 1894, § 4343. 

Treasurer— Improvement contract with town.— A contract between a town treas- 
urer and the town for the improvement by the former of a public street is void as 
against a property owner assessed on account of the improvement. Benton v. Hamil- 
ton, 110 Ind. 294; Case v. Johnson, 91 Ind. 477. 

Treasurer — Suit on bond. — In a suit upon the bond of a town treasurer for failure to 
pay the moneys of the town to his successor, an answer in bar that third parties had 



759 GOVERNMENT AND POWERS. § 1187 

recovered a judgment against the town upon bonds issued by the town was bad. Har- 
vey V. State, 94 Ind. 159, 160. 

Same — Sureties — New bond. — In a suit upon an official bond an answer by sureties 
that the aireties on a former bond had, upon proper apphcation, in term, obtained an 
order from a judge pro tem. discharging them, which, however, was never entered of 
record, and thereupon the bond sued upon was executed, was bad. Harvey v. State, 
94 Ind. 159. 

Brea»c]i of bond. — The use by a town treasurer of the funds of the town is not a breach 
of the condition of his bond ; there is no breach until he fails to pay or account as the 
law requires. Harvey v. State, 94 Ind. 159; see Winchester, etc., Co. v. Veal, 145 Ind. 
506, and post, § 1412. See p. 758, et seq., and notes. 

1187. Duties of treasurer. — 39. The treasurer of every incorpo- 
rated town shall so keep his accounts as to show when and from what 
sources all moneys paid him have been derived, and to whom and 
when such moneys, or any part thereof, have been paid. The treas- 
urer shall grant all licenses authorized by this act, upon the presenta- 
tion of the receipt of the marshal that the money therefor has been 
paid to said marshal. His books, accounts, and vouchers shall at all 
times be subject to the examination of the board of trustees; and it is 
hereby made their duty to examine the same at a regular meeting of 
such board, on some day between the first and last Monday of April 
in each year, and to have settlement with the said treasurer. R. S. 
1894, § 4344. 

1188. Publication of treasurer's settlement. — 40. It shall be the 
duty of the board of trustees, immediately after the annual settlement 
with the treasurer of said corporation, to publish in a newspaper, if 
one be printed therein, or, if there be no newspaper, then by posting 
in three or more public places an exhibit of the receipts and expen- 
ditures, specifying the sources of such receipts, what appropriations 
were made, for what objects, and the specific amount of each. R. S. 
1894, § 4345. 

1189. Duties of clerli. — 41. The clerk of such town shall have 
the custody of the records, books and papers of the board of trustees, 
and shall attend all meetings and record the proceedings of said board, 
and shall perform all other duties appertaining to his office and re- 
quired of him by the by-laws. R. S. 1894, § 4346. 

Municipal act— Competent evidence— Eecord.— The only competent evidence of any 
act or proceeding of a municipal body upon which members of the corporate body are 
required to vote, is the record of the proceedings. Byer v. Town of New Castle, 124 
Ind. 86 ; City of Logansport v. Crockett, 64 Ind. 319 ; City of Delphi v. Evans, 36 Ind. 90. 

Mandamus. — Mandamus lies by an officer to compel the delivery, by his predecessor, 
of the records, books and papers of the office. Frisbie v. Fogg, 78 Ind. 269. 

Nunc pro tunc entry. — The board may authorize a oiunc pro tunc entry to make the 
records speak the truth. Everett v. Deal, 148 Ind. 90; Logansport v. Crockett, 64 Ind. 
819. 

[Acts 1879, p. 15. In force March 10, 1879.] 

1190. Marshal, — 2. The town marshal shall be elected by the 
qualified voters, as other officers are elected under the present election 
laws of this state, in all incorporated towns of this state; and he shall 



§ 1191 TOWNS. 760 

hold his office for one year, or until his successor is elected and quali- 
fied. R. S. 1894, § 4347. 

1191. Marshal. — 4. Whenever any vacancy shall occur in the of- 
fice of town marshal by death, resignation, or removal, the board of 
trustees of such incorporated town shall have power to appoint a suc- 
cessor, who shall hold his office until his successor is elected and qual- 
ified. R. S. 1894, § 4348. 

[1 R. S. 1852, p. 482. In force May 6, 1853.] 

1192. Powers of marshal — Fees. — 42. The marshal of such town 
shall possess the powers and be subject to the liabilities possessed and 
conferred by law upon constables, in executing the orders of the trus- 
tees or enforcing the by-laws and ordinances of said town. Such town 
marshals shall have, in addition to powers they now possess, the ju- 
risdiction and powers of constables in their respective counties, and 
shall be entitled to the same fees as constables while acting as con- 
stables. [As amended. Acts 1889, p. 40. In force February 25, 
1889.] R. S. 1894, § 4349. 

Marshal's fees, see ante, § 95, note. 

Arrest — With and without writ. — A peace officer may arrest for a misdemeanor 
without a warrant only on view. He may arrest for felony without a warrant on view, 
or upon information when he has reasonable or probable cause to believe that a felony 
has been committed ; but if a private person arrest another for felony on information, 
and not on view, it devolves on him to justify by showing that the party arrested was 
guilty of the crime charged. Doering v. State, 49 Ind. 56; Plummer v. State, 135 Ind. 
308; Pow V. Beckner, 3 Ind. 475; NeaUs v, Hayward, 48 Ind. 19. 

Authority of marshal — Ordinances. — The marshal of a town is authorized to arrest, 
without a warrant, a person who is violating an ordinance of the town in his presence 
or view, whether the ordinance expressly authorizes him to do so or not. Scircle v. 
Neeves, 47 Ind. 289; Neahs v. Hayward, 48 Ind. 19. 

Authority to detain prisoner.— If a person is arrested late at night for an offense 
committed in the presence of the officer, such person may be detained until next day 
before being taken before court for trial. Especially is this the case if the prisoner is 
so intoxicated as not to be conscious of what is occurring. In such case the prisoner 
may be detained until the next day, and until in condition to be taken before the court 
for trial. Scircle v. Neeves, 47 Ind. 289. 

Power of town to employ counsel to defend action ag-ainst marshal.— The bbard 
of trustees of a town have incidental power to employ counsel to defend an action for 
false imprisonment brought against the town marshal by one arrested by him for the 
violation of a town ordinance, and a claim for service rendered under such employ- 
ment may be enforced in an action against the town. Cullen v. Town of Carthage, 103 
Ind. 196. 

Liability of town for acts of marshal in making- arrest.— A town is not liable for 
the acts of an officer in making an arrest for violation of a penal ordinance prohibiting 
the running of hacks within the limits of the town by an unlicensed person. Vaught- 
man v. Town of Waterloo, 14 App. 649. 

A town is not liable for an illegal arrest by its marshal made without a warrant, and 
under an invalid ordinance. Town of Laurel v. Blue, 1 App. 128. 

Town— Agreement to indemnify marshal.— A municipal corporation can not be 
held liable on an agreement to indemnify an officer for performing his duty by making 



761 GOVERNMENT AND POWERS. § 1193 

an arrest for violation of a penal ordinance of such corporation. Vaughtman v. Town 
of Waterloo, 14 App. 649. 

Power to collect taxes. — The tax duplicates and warrants attached thereto confer 
authority upon the marshal to seize and sell the property of a tax-payer the same as an 
execution issued to the sheriff confers power upon him to seize personal property to 
satisfy such execution. Town of Andrews v. Sellers, 11 App. 301 ; Wise v. Eastman, 
30 Ind. 133. 

[Acts 1893, p. 293. In force March 3, 1893.] 

1193. Deputy marshals. — 1 . That boards of trustees of incorporated 
towns are hereby authorized and empowered to appoint deputy mar- 
shals, not exceeding in number one for each ward of such town, and 
said deputy marshals shall possess the powers and be subject to the lia- 
bilities possessed and conferred b}^' law upon constables in executing 
the orders of the board of trustees or enforcing the by-laws and ordi- 
nances of such town. R. S. 1894, § 4350. 

1194. Bond and compensation.— 2. The board of trustees shall 
regulate the amount of bond, the compensation and the term of service 
of said deputy marshals, and they shall be subject to the order of the 
marshal of such town, under the general direction and control of the 
board of trustees. R. S. 1894, §4351. 

[1 K. S. 1852, p. 482. In force May 6, 1853.] 

1195. Duties of trustees as to streets. — 43. The board of trustees 
shall superintend the grading, paving and improving of streets and 
the building and repairing of sidewalks. R. S. 1894, § 4352. 

See post, §§1250 and 1258; Cities and Towns, ante, §1107, et seq. 

By virtue of above section and post, §§ 1250, 1251, 1252, 1253 and 1258 (R. S. 1894, 
§§4394, 4395, 4396, 4397, 4404), the board of trustees of an incorporated town is vested 
with plenary powers and exclusive jurisdiction over the streets and the improvement 
and repair thereof. Drew v. Town of Geneva, 150 Ind. 662; Keith v. Wilson, 145 Ind. 
149. 

1196. Fire wardens. — 44. The fire wardens shall attend all fires, 
give their personal superintendence to extinguishing the same, do all 
other acts required by the by-laws, and obey all orders given by the 
board of trustees in relation to the fire department. Trustees shall, by 
virtue of their office, be fire wardens. R.. S. 1894, § 4353. 

1197. Pay of officers, — 45. The trustees, clerk, treasurer and mar- 
shal shall, respectively, receive for their services such compensation 
as the board of trustees, in their by-laws, may direct; and said board 
shall cause to be paid to all other officers of such town, for their serv- 
ices, a just and reasonable compensation. R. S. 1894, § 4354. 

1198. ToT\Ti swing — Proof. — 55. Whenever any suit shall be insti- 
tuted by an incorporated town, it shall not be required to show its 
compliance with the provisions of this act as to its organization, or as 
to publication of by-laws or ordinances, unless the same is contro- 
verted by affidavit. R. S. 1894, § 4355. 

See post, § 1237. 

Complaint— Averments— Org-anization— Ordinance — Publication.— A complaint to 



§ 1199 TOWNS. 762 

recover for a violation of a toT\"n ordinance is sufficient, where it contains averment of 
the proper enactment of such ordinance, the violation of its provisions by the defend- 
ant, and the acts constituting such violation ; it is sufficient to aver that the ordinance 
was duly adopted by the board of trustees of the town, and to set out in or with the 
complaint, so much of the ordinance as relates to the action ; it is not necessary to aver 
that the members of the board of trustees which passed the ordinance were duly elected, 
nor that they had authority to pass the ordinance, nor that it has been published. 
Hardenbrook v. Town of Ligonier, 95 Ind. 70; Town of Brookville v. Gagle, 73 Ind. 
117; Wagner v. Town of Garrett, 118 Ind. 114; Town of Martinsville v. Frieze, 33 Ind. 
507; Vinson v. Town of Monticello, 118 Ind. 103; Clevenger v. Town of Rushville, 90 
Ind. 258; Green v. City of Indianapolis, 25 Ind. 490; Lake Erie, etc., E. Co. v. City of 
Noblesville, 15 App. 697; Lake Erie, etc., R. Co. v. City of Noblesville, 16 App. 20. 

Judicial notice. — While courts take judicial notice of the incorporation of cities and 
towns, they do not take judicial notice of municipal ordinances and acts. 1 Beach Pub. 
Corp., §74; 1 Dillon Munic. Corp. (4th ed.), §83. 

1199. Special meeting of Toters. — 21. Special meetings of the 
qualified voters may be called by the clerk, by the order of the trust- 
ees of said town, by giving ten days' notice thereof in a newspaper, 
if any be printed in such town ; otherwise, by posting up such notices 
in five public places therein ; and such notice shall state the objects 
for which such meeting is called. R. S. 1894, § 4356. 

[Acts 1879, p. 201. In force March 31, 1879.] 

1200. Powers of trustees. — 22. The board of trustees shall have 
the following powers: 

Action of the board— When valid. — Individuals composing the board have no power 
to act so as to bind the corporation, except when they are convened as a board, and any 
contract made by them when not thus convened, or by an individual thereof, unless it 
is afterward fully approved and confirmed when in legal session, is not valid. Blue v. 
Briggs, 12 App. 105; School Town of Milford v. Powner, 126 Ind. 528; Eund v. Town 
of Fowler, 142 Ind. 214. 

Town board— Arbitrary ejection— Assault and battery.— Where a president of a 
board of trustees of a town orders a marshal to eject a person present at a board meet- 
ing who is doing nothing and saying nothing to disturb the meeting, and the marshal 
acting under such order took such person by the coat and said "come and go outside," 
the president was guilty of an assault and battery. O'Hara v. State, 21 App. 320. 

The board of trustees has the right to maintain order, and to remove any one inter- 
fering with the transaction of the business, but it has not the right arbitrarily to eject 
or attempt to eject one present at a meeting who is not at the time conducting himself 
improperly. O'Hara v. State, 21 App. 320. 

Trustees not the corporation. — It is the inhabitants, and not the officers, who con- 
stitute the public corporations of the land, and so the trustees of a town represent, but 
do not constitute, the corporation, and, although they have violated their duty, they 
may invoke the aid of the courts to protect its rights. City of Valparaiso v. Gardner, 
97 ind. 1, 6; Strosser v. City of Ft. Wayne, 100 Ind. 443, 449; Baumgartner v. Hasty, 
100 Ind. 575, 585 ; Union S. Tp. v. First Natl. Bank, 102 Ind. 464, 476 ; Platter v. Board, 
etc., 103 Ind. 360, 381; Vogel v. Brown Tp., 112 Ind. 299, 300; Citizens', etc., Co. v. 
Town of Elwood, 114 Ind. 332, 336. 

Power to contract— Power to employ counsel.— The board of trustees of a town in 
this state have incidental power to employ counsel to defend an action for false 



763 GOVERNMENT AND POWERS. § 1200 

imprisonment brought against the town marshal by one arrested by him for the viola- 
tion of a tovni ordinance, and a claim for services rendered under such employment 
may be enforced in an action against the town, Cullen v. Town of Carthage, 103 Ind. 
196, 198; City of Logansport v. Dykeman, 116 Ind. 15, 21. 

Power to employ factors and brokers. — Town trustees are not required themselves 
to sell municipal bonds issued pursuant to the provisions of § 5975, R. S. 1894, but may 
employ a broker to make the sale. The contract of employment need not be in writing. 
Eeed v. Town of Orleans, 1 App. 25, 27. 

Broker— Complaint, when sufficient. — The complaint in an action by a broker to re- 
cover for his services rendered in selling bonds need not aver that the broker was em- 
ployed by the trustees while they were in session ; an averment that the town by its 
trustees engaged him to sell the bonds shows the employment was authorized. Reed 
V. Town of Orleans, 1 App. 25, 27. 

Power to purchase lire eng'ines. — A town, incorporated by a special act of the legis- 
lature, prior to the constitution of 1851, had power under its charter to purchase fire- 
engines, but upon amendment of its charter by the legislature in 1873 such power was 
omitted. Notwithstanding such omission, the town possessed inherent power to pur- 
chase such engines for the protection of the property of its citizens from fire. Corpora- 
tion of Bluffton V. Studabaker, 106 Ind. 129, 133. 

Liquor license. — An incorporated town, of 1875, having no power to do so, passed an 
ordinance requiring a license fee of fifty dollars for retailing liquors, and the trustees, 
at a regular meeting, agreed orally wdth A. to enter upon their record an agreement 
that, in consideration that he would pay the fee, they would repay him the money if 
the ordinance should be adjudged invalid. He accepted the proposition and made the 
payment. Afterward the fact of the agreement was entered of record. The ordinance 
was afterward adjudged invalid. A. sued for breach of the contract. The contract was 
valid, and A. could recover. Town of Columbia City v. Anthes, 84 Ind. 31, 35. 

Evidence. — Evidence that certain work upon a street in a town was done under the 
supervision of the town marshal, and was accepted and paid for by the town, is suffi- 
cient to show that the work was done by the order and under the authority of the town. 
Town of Thorntown v. Fugate, 21 App. 537. 

Officers' contracts with town void.— Contracts between town officers of the town 
relating to public work, are void. Case v. Johnson, 91 Ind. 477 ; Benton v. Hamilton, 
110 Ind. 294; Pratt v. Luther, 45 Ind. 250; see post, § 1420 and note. 

First. To have a common seal and alter the same. 

Second. To purchase, hold and convey any estate, real or personal, 
for the use of the corporation, so far as such purchase may be neces- 
sary to carry out the objects contemplated in this act. 

Trustee— Sale of land by to town.— A sale of land by a trustee of a town to the 
town is voidable at the election of the vendee. A trustee can not occupy the double 
and inconsistent position of vendor and purchaser. Pratt v. Luther, 45 Ind. 250. 

Third. To organize fire companies, to regulate their government 
and the times and manner of their exercise, to provide all necessary 
apparatus for the extinguishment of fires, to make owners of build- 
ings provide ladders and fire buckets, which are hereby declared 
to be appurtenances to the real estate, and exempt from execution, 
seizure or sale; and if the owner shall refuse to procure suitable 
ladders or fire buckets, after reasonable notice, the trustees may pro- 
cure and deliver the same to him, and in default of payment therefor, 
may recover of said owner the value of such ladder or fire buckets, by 



§ 1200 TOWNS. 764 

suit before any justice of the peace in the proper township, and costs 
accrued thereby; to regulate the storage of gun powder and other dan- 
gerous material; to direct the construction of a place of safe deposit 
of ashes, and may, under any order by them entered upon the proper 
book of the board, visit, or appoint one or more fire wardens to visit 
and examine, at all reasonable hours, dwelling houses, lots, yards, in- 
closures and buildings of every description, discover if any of them 
are in a dangerous condition, and provide proper remedies for such 
danger; to regulate the manner of putting up stoves and stove-pipes 
to prevent out-fires, and the use of fire-works, and the discharge of 
fire-arms within the limits of such corporation, or such parts thereof 
as they may think proper; to compel the inhabitants of such towns to 
aid in the extinguishment of fires and prevent its communication to 
other buildings, under such penalties as are in this act provided; to 
construct and preserve reservoirs, wells, pumps, and other water- 
works, and to regulate the use thereof, and generally to establish 
other measures of prudence for the prevention and extinguishment of 
fires, as they shall deem proper. 

Fire company— Members — T^'ork on hig'hway.— It is only the members of a fire 
company organized by the town board, and under its control, that are entitled to ex- 
emption from work upon the highways of the town. Leedy v. ToM'n of Bourbon, 12 
App. 486. 

Fire apparatus— Purchase. — Under the power conferred by this section the board 
of trustees of a town is authorized to purchase necessary apparatus for the extinguish- 
ment of fires for cash. Second National Bank, etc., v. Town of Danville, 60 Ind. 504. 

Inherent power. — In the absence of express power conferred by statute a town has 
inherent power to purchase fire engines, etc., for the protection of the property of its 
citizens from fire. Corporation of Bluffton v. Studabaker, 106 Ind. 129. 

Fourth. To declare what shall constitute a nuisance, and to prevent, 
abate and remove the same, and take such other measures for the 
preservation of the public health as they shall deem necessary. 

Slaug-hter-house — Nuisance — Ordinance. — A town ordinance, declaring that slaugh- 
ter-houses within the corporate limits shall be deemed public nuisances, and making it 
unlawful to maintain any within such limits, is authorized by this clause, and a slaugh- 
ter-house erected or conducted in violation of an ordinance prohibiting its maintenance 
within the corporate limits of the town becomes a nuisance, although it would not be 
such in the absence of such ordinance. Rund v. Town of Fowler, 142 Ind. 214; Belling 
V. City of Evansville, 144 Ind. 644. 

Same — Estoppel. — A town is not estopped to claim that a slaughter-house within the 
corporate limits violates an ordinance, merely because its location was directed and 
consented to by the town trustees, unless direction or consent was taken by corporate 
action in some method recognized by law. Eund v. Town of Fowler, 142 Ind. 214. 

Nuisance — Power to abate — Courts. — The power conferred by statute upon incorpo- 
rated towns to declare and abate nuisances does not exclude a i-esort to the courts for 
such purpose. American Furniture Co. v. Town of Batesville, 139 Ind. 77. 

Same — Concurring* remedies. — Where there are concurring effectual remedies, 
the choice and uninterrupted prosecution of one excludes the other. American Furni- 
ture Co. V. Town of Batesville, 139 Ind. 77. 



765 GOVERNMENT AND POWERS. § 1200 

Fifth. To restrain from running at large cattle, sheep, swine and 
other animals. 

Impounding' animals. — Under this section, before its amendment, it was held that 
towns could not provide for the impounding and sale of animals found running at large 
in the streets. Slessman v. Crozier, SOInd. 487. 

Dog'S— Town ordinance. — A town ordinance requiring the owners of dogs to keep 
them upon their own premises, or to muzzle them securely in order to guard against 
hydrophobia and requiring the town marshal to kill all dogs found running at large in 
violation of the ordinance, is a valid exercise of the police power given by the statute 
to the trustees of the town. Haller v. Sheridan, 27 Ind. 494; Mitchell v. Williams, 27 
Ind. 62. 

Sixth. To restrain and prohibit gambling and other disorderly con- 
duct; to suppress and prohibit the keeping of houses of ill-fame, and 
to authorize the seizure and destruction of gambling apparatus; to 
punish intoxication, common prostitutes and their associates, immod- 
erate driving and riding; to regulate or prohibit the use of fire-arms, 
fire- works, or other things tending to endanger persons and property; 
to prevent interference with the free use of the streets and alleys of 
the town, and to preserve peace and good order and prevent vice and 
immorality. 

Fast driving" — Ordinary trot. — An ordinance inflicting a fine upon any person w^ho 
shall willfully, etc., ride or drive animals on its streets "faster than an ordinary trot" 
is authorized by the statute, and is not unreasonable, and the description of the gait is 
not vague or uncertain. Nealis v. Hay ward, 48 Ind. 19. 

Eailroad crossing's— Watchmen— Gates. — An incorporated town can not by ordi- 
nance compel a railroad company to keep a watchman and erect and maintain gates at 
points where the tracks cross a street, and impose penalties for the failure so to do. 
Express power has not been conferred by the statute to pass and enforce such an ordi- 
nance, nor can such power be implied from those expressly granted, nor is such power 
essential to the declared objects or purpose of the corporation. Pittsburgh, etc., E. 
Co. V. Town of Crown Point, 146 Ind. 421. 

Seventh. To license, regulate or restrain auction establishments, 
street auctions, and all tables, alleys, machines, devices, and places 
for sports or games, kept for hire or pay, traveling peddlers, public 
exhibitions, and the sale of spirituous, vinous, malt and other intoxi- 
cating liquors. A sum not exceeding the amount required by the 
statutes of the state for license to sell or retail intoxicating liquors, 
may be required to be paid into the treasury of the corporation by the 
person so licensed before receiving such license. 

See ante, § 994. 

Peddler's license — Sale by sample.— An ordinance of a town of this state requiring 
all traveling peddlers of goods to take out a license is not void on the assumption that 
it applies only to non-residents of such town, for it equally applies to citizens thereof ; 
but it is void as to residents of other states who are engaged in selling goods located in 
such other states, even though the sale is only by sample, on the ground that it is an 
interference with interstate commerce. Graffty v. City of Rushville, 107 Ind. 502, 511; 
Martin v. Town of Rosedale, 130 Ind. 109, 110.' 

License— Ordinance—Intoxicating' liquors.— Under this clause an ordinance pro- 



§ 1200 TOWNS. 766 

viding for a license fee of one hundred dollars for the sale of intoxicating liquors is 
vahd. One who sells beer without a license, contrary to the provisions of the ordi- 
nance, may be convicted thereunder. Copeland v. Town of Sheridan, Ind. Sup. Ct., 
Oct. 25, 1898. 

When the statute in force does not require it, the town under the above clause is 
under no obligation to issue one license for selling spirituous, vinous and malt liquors, 
and another to sell vinous and malt liquors alone. Copeland v. Town of Sheridan, 
Ind. Sup. Ct., Oct. 25, 1898. 

Liquor selling* — License. — Prior to 1879, incorporated towns in this state had no 
authority to regulate and license the sale of intoxicating liquors. Carr v. Town of 
Fowler, 74 Ind. 590, 591 ; Meader v. Town of Fowler, 74 Ind. 601 ; Town of Martinsville 
V. Frieze, 33 Ind. 507; McFee v. Town of Greenfield, 62 Ind. 21 ; Town of Princeton v. 
Vierling, 40 Ind. 340; Deutschman v. Town of Charleston, 40 Ind. 449; W.alter v. Town 
of Columbia, 61 Ind. 24; Cowley v. Town of Paishville, 60 Ind. 327. 

It is not an offense against the laws of the state to sell intoxicating liquors without a 
town license, and hence § 1709, E. S. 1894, does not prohibit the recovery of a penalty 
for violation of a town ordinance on that subject. Clevenger v. Town of Eushville, 90 
Ind. 258, 260; Vinson v. Town of Monticello, 118 Ind. 103. 

To an action to recover the license fee required by a town ordinance, it was answered 
that the election at which the trustees who passed the ordinance were elected, was not 
conducted by the then trustees, as inspectors, but by disqualified persons, etc. The 
answer was bad, as the question of the right of the trustees to exercise their ofiice could 
not be questioned collaterally, and the answer did not negative the fact that they were 
trustees de facto. Redden v. Town of Covington, 29 Ind, 118. 

Same — License. — A license to retail liquors is neither a contract nor a grant, but a 
mere permit, and the person who receives it does so with the tacit condition and knowl- 
edge that it is, at all times, within the control of the legislature. A statute authorizing 
towns to require license for the sale of intoxicating liquors, is not unconstitutional in 
so far as it affects the rights of dealers who had obtained a license from the county au- 
thorities, under a prior act. McKinney v. Town of Salem, 77 Ind. 213; State v. Bon- 
nell, 119 Ind. 494; Moore v. City of IndianapoUs, 120 Ind. 483. 

Liquor license — Power to limit. — A town has the right to limit the licenses issued 
by it for the sale of intoxicating liquors to such persons as have procured and hold a 
license from the board of county commissioners. Wagner v. Town of Garrett, 118 Ind. 
114, 116. 

Act of 1889 constitutional.— The act of March 11, 1889, R. S. 1894, § 7282 (anie, §994), 
empowering cities and incorporated towns to increase the sum theretofore required to be 
paid for a license to sell intoxicating liquors, is not invalid as violating § 21, article 4, of 
the state constitution. Bush v. City of Indianapolis, 120 Ind. 476; Moore v. City of 
Indianapolis, 120 Ind. 483. 

Intoxicating- liquors— Reg-ulations— Screens.— A municipal corporation has not the 
power under this clause to make an ordinance requiring the removal from doors and 
windows of saloons of all screens and other obstructions to the view of the interior of, and 
business transacted within such saloon; such an ordinance being void, as being pro- 
hibitive of a lawful business, and not merely regulative. Steffy v. Town of Monroe 
City, 135 Ind. 466; Champer v. City of Greencastle, 138 Ind. 339. 

Liquor license— Void ordinance— Voluntary paj^ment.— Where in an action to 
recover moneys, paid by the plaintiff to the defendant, a town, for a license to sell in- 
toxicating liquors, under an invalid penal ordinance adopted under a void statute, the 
complaint averred that such payment was made "for the purpose of avoiding the pen- 
alty and forfeiture," etc., ^'and to save himself from arrest and imprisonment for vio- 
lating the provisions of said ordinance as provided for by the statute." Such com- 
plaint does not show that such payment was not voluntary, and is therefore bad on 



I 



767 GOVERNMENT AND POWERS. § 1200 

demurrer for want of sufficient facts. The cases of Town of Princeton v. Vierling, 40 
Ind. 340, and The Town of Ligonier v. Ackerman, 46 Ind. 652, overruled; Town of 
Brazil v. Kress, 55 Ind. 14. 

Money paid to a town as a license fee, under an invalid ordinance requiring a license 
for the sale of intoxicating liquors, can not be recovered ; but if the town agrees with 
a pei-son on the payment of a license fee that if the ordinance requiring the same is 
declared invahd the fee shall be repaid, on such ordinance being declared invalid such 
town will be liable for such fee. Colglaizer v. Town of Salem, 61 Ind. 445 ; Town of 
Columbia City v. Anthes, 84 Ind. 31; Town of Brazil v. Kress, 55 Ind. 14; Town of 
Edinburg v. Hackney, 54 Ind. 83 ; Town of Ligonier v. Ackerman, 46 Ind. 552 ; Town of 
Sullivan v. McCammon, 51 Ind. 264. 

Eighth. To establish and regulate markets, and build market- 
houses, and direct the location of slaughter houses. 

Ninth To lay out, open, grade and otherwise improve the streets, 
alleys, sewers, side-walks and crossings, and keep them in repair, and 
to vacate the same. 

See ante, § 1195, post, §§ 1250, et seq., and 1258; Cities and Towns, ante, § 1107, et seq. 

Power over streets — Liability of town. — Boards of trustees in towns are given ex- 
clusive power over the streets ; and, if the streets and alleys are not kept by the trus- 
tees in a safe condition for public travel, the towns will be liable in damages for inju- 
ries resulting, in the absence of negligence upon the part of the person injured. Town 
of Kentland v. Hagen, 17 App. 1; Pittsburg, etc., R. Co. v. Town of Crown Point, 146 
Ind. 421; Keith v. Wilson, 145 Ind. 119; Sparling v. Dwenger, 60 Ind. 72; State v. 
Mainey, 65 Ind. 404; Town of Centerville v. Wood, 57 Ind. 192; Town of Elkhart v. 
Ritter, 66 Ind. 136; Scudder v. Hinshaw, 134 Ind. o6; Elliott Roads and Streets, p. 319, 
et seq. 

Street commissioner— Marshal— Hig"hway.— Under the ninth clause the marshal 
probably may be, but the street commissioner is, an appropriate officer to execute au 
order of the board of trustees to remove an obstruction from a street or alley. Under the 
general law for the incorporation of towns there can be no such body as a board of coun- 
cilmen. Bidinger v. Bishop, 76 Ind. 244, 248. 

Supervisors of hig'hways. — Supervisors of highways have no control over the streets 
of an incorporated town. State v. Mainey, 65 Ind. 404. 

Changfe of grade. — An incorporated town is not liable for consequential damages to 
an abutting property owner who has improved his property with reference to an estab- 
lished grade resulting by reason of a change of such established grade. Baker v. Town 
of Shoals, 6 App. 319; City of Wabash v. Alber, 88 Ind. 428; Snyder v. President, etc., 
6 Ind. 237 ; Elliott Roads and Streets, p. 336. 

Same— Certainty of ordinance. — Boards of trustees are authorized to establish the 
grades of streets, and to require the owners of lots, in constructing sidewalks, to make 
them conform thereto, without any petition on the part of the property holders. An 
ordinance establishing the grades of certain streets is not void for uncertainty, if the 
grade so established can be ascertained without difficulty. Burr v. Town of New Castle, 
49 Ind. 322. 

Drains and sewers. — A town corporation is not liable to an action for damages accni- 
ing by reason of the failure of the corporation to exercise its discretionary powers, of a 
public or legislative character, as for a failure to provide drains and sewers. The act of 
directing the construction of a drain or sewer is a legislative act, but the construction of 
the drain or sewer is the performance of a ministerial duty, and for negligence in the 
performance of the ministerial duty the town would be liable. Town of Monticello v. 
Fox, 3 App. 481 ; Weis v. City of Madison, 75 Ind. 241 ; Wheeler v. Oty of Plymouth, 
116 Ind. 158. 



§ 1200 TOWNS. 768 

Vacation of hig'hway.— The corporate limits of a town extended to and along the 
middle of a county road, thirty feet in width, located before the town was laid out. 
The board of trustees under this clause had no power to vacate so much of said highway 
as was within the corporate limits. Debolt v. Carter, 31 Ind. 355. 

Tenth. To appoint street commissioners and fire wardens not exceed- 
ing three. 

Eleventh. To prohibit the incumbrance of the sidewalks of said 
town, and riding or driving thereon, except to cross the same. 

See post, § 1384. 

This clause did not repeal R. S. 1894, § 4398, making it a misdemeanor to ride or drive 
upon the brick, stone, plank or gravel sidewalk of any town or village. Town of Whit- 
ing V. Doob, Ind. Sup. Ct., Feb. 2, 1899. 

Sidewalks — Obstructions. — A sidewalk is a part of the street, and streets include 
sidewalks. Town of Rosedale v. Ferguson, 3 App. 596, 598; State v. Berdetta, 73 Ind, 
185; City of Indianapolis v. Higgins, 141 Ind. 1. 

The wrongful obstruction of street a misdemeanor— Ordinance invalid.— The 
wrongful obstruction of a public street or sidewalk of a city or town is a misdemeanor 
punishable under the criminal law of the state, and a city or town can not enact an or- 
dinance prescribing a penalty for any one who obstructs the street. City of Indianap- 
olis V. Higgins, 141 Ind. 1 ; State v. Mainey, 65 Ind. 404. 

Same — Driving* across a sidewalk. — Any one driving on a sidewalk of a city or 
town, unless to cross it, is guilty of a misdemeanor under §2047, R. S. 1894, and may 
be punished ; but the city or town can not make, by ordinance, the same act a penal 
offense. City of Indianapolis v. Higgins, 141 Ind. 1. 

The statute making it a misdemeanor to ride or drive upon a brick, stone, plank or 
gravel sidewalk, being a penal one, is to be strictly construed, and does not apply to 
the act of riding or driving upon sidewalks constructed of other material than brick, 
stone, plank or gravel. Town of Whiting v. Doob, Ind. Sup. Ct., Feb. 2, 1899. 

Bicycle — City and town ordinances. — A bicycle is a vehicle, and riding a bicycle 
upon the brick, stone, plank or gravel sidewalks of a town or city is a public offense 
against the state, and such offense is not punishable under a city or town ordinance ; 
but under an ordinance prohibiting the riding of a bicycle on the sidewalks upon a 
proper complaint and proof, a person may be punishable for riding a bicycle upon a 
sidewalk other than one of brick, stone, plank or gravel. Town of Whiting v. Doob, 
Ind. Sup. Ct., Feb. 2, 1899 ; Bybee v. State, 94 Ind. 443 ; Mercer v. Corbin, 117 Ind. 450. 

Twelfth. To insure the public property of such town. 

Thirteenth. To purchase, lay out and regulate cemeteries. 

Fourteenth. To plant trees upon public grounds, and along the streets 
of such town, and provide for their culture and preservation, and to 
inclose any public square or other public grounds within said corpo- 
ration. 

Fifteenth. To levy and collect annual taxes, not exceeding fifty cents 
on the hundred dollars valuation and twenty-five cents poll-tax, on 
all property subject by law to taxation, and on each male dog a tax 
not exceeding one dollar, and on each female dog a tax not exceeding 
two dollars, to be paid by the owner thereof. 

See post, § 1238, et seq. 

Sixteenth. To make and establish such by-laws, ordinances, and 



769 GOVERNMENT AND POWERS. § 1200 

regulations, not repugnant to the laws of this state, as may be neces- 
sary to carry into effect the provisions of this act, and to repeal, alter, 
or amend the same as they shall seem to require, but every by-law, 
ordinance or regulation, unless in a case of emergency, shall be pub- 
lished in a newspaper in such town, if one be printed therein, or posted 
in five public places, at least ten days before the same shall take effect. 

Invalid ordinances— Certificate of election.— Ordinances passed by the board of 
trustees before a certificate of tlieir election has been filed in the office of the clerk are 
invalid ; but if such certificate is filed with the clerk after the time fixed by law the ef- 
fect is to legalize and validate, from their inception, ordinances and contracts for street 
improvements previously made by the board of trustees. Dinwiddle v. President, etc., 
37 Ind. 66; Jennings v. Fisher, 103 Ind. 112. 

Town ordinance— Reasonableness of .—The courts will not enquire into the wisdom 
or reasonableness of an ordinance which a town has power to pass and enforce, unless 
it violates some constitutional provision. Rund v. Town of Fowler, 142 Ind. 214; Stef- 
fey V. Town of Monroe City, 135 Ind. 466; Champer v. City of Greencastle, 138 Ind. 
339; Pittsburgh, etc., R. Co. v. Town of Crown Point, 146 Ind. 421. 

Same— General power— Mode of exercise— Ordinance.— Where the power granted 
by the statute is in general terms, and the mode and manner of its exercise are not pre- 
scribed, but are left to the discretion of the municipal corporation, the courts may in- 
quire whether in the enactment of the ordinance there has been a reasonable exercise 
of the power granted, or whether in fact power was given the municipality to do what 
it attempted to do by the ordinance ; but where the power to enact the ordinance is 
specifically conferred on the city or town, and the statute with precision defines the de- 
tails of the same, and prescribes the penalties that may be imposed, if the power thus 
granted be not in conflict with the constitution, the reasonableness of an ordinance 
enacted within the power granted can not be inquired into by the courts, nor set aside 
because they deem it unreasonable, or against public policy. City of Shelby ville v. 
Cleveland, etc., R. Co., 146 Ind. 66; Champer v. City of Greencastle, 138 Ind. 339; 
Pittsburg, etc., R. Co. v. Town of Crown Point, 146 Ind. 421; Shea v. City of Muncie, 
148 Ind. 14; 1 Beach Pub. Corp., §§ 91, 92. 

Misdemeanor — Invalidity of ordinance.— Where an act is made a misdemeanor 
punishable under the criminal laws of the state, a city or town can not enact an ordi- 
nance prescribing a penalty for the same offense. City of Indianapolis v. Higgins, 141 
Ind. 1; City of Indianapolis v. Huegele, 115 Ind. 581 ; City of Frankfort v. Aughe, 114 
Ind. 77; see post, §1383. 

Impounding" animals— Ordinance invalid.— Towns in this state have no power to 
provide by ordinance for the impounding and selling of animals found at large in their 
streets or other public places. Slessman v. Crozier, 80 Ind. 487. 

Reg"nlation and license of hackneymen— Railroad crossing's— Street cars— Fast 
driving". — An ordinance of an incorporated town regulating the running of hacks, by 
requiring a license, is a proper and reasonable exercise of municipal power, and is fully 
implied and authorized by the statutes, and this is true particularly under this clause. 
And this power over streets also extends to all reasonable regulations, as to railroad 
crossings, movement of street cars, fast driving and to any other use of the streets 
which may make travel upon them dangerous to the public. Scudder v. Hinshaw, 134 
Ind. 56. 

Streets — Fast driving*. — An incorporated town is authorized to prohibit, by ordi- 
nance, riding or driving in its streets faster than an ordinary trot, and to inflict a fine 
therefor. Such an ordinance is not unreasonable. Nealis v. Hay ward, 48 Ind. 19; see 
post, § 1427. 

Emergrency— Invalid order fixing" grade.— Where an order estabUshiiig the grade 
CiT. AND To.— 49 



§ 1201 TOWNS. 770 

of a street in a town is passed by the board of trustees without an emergency clause, and 
no notice of its adoption is given, the order is invalid. A lot-owner whose property is 
injured by the improvement of the street in such case may maintain an action against 
the contractor for damages. Meyer v. Fromm, 108 Ind. 208. 

Seventeenth. Such board of trustees shall have power to complete 
school-houses, now in progress of erection, and provide for the pay- 
ment of the same, to erect or provide such school-houses as may be 
necessary for the use of the schools of the town, to keep them in re- 
pair, and to provide fuel and other necessaries therefor. 

Eighteenth. To construct all necessary wharves and landings for 
steamboats and other vessels, where such town is situated on the bank 
of any navigable stream or water-course. 

Nineteenth. The said board of trustees shall have power to levy and 
collect annual taxes not exceeding thirty cents on the hundred dollars 
valuation on all property subject by law to taxation for the support of 
town schools within their said corporation. [As amended, Acts 1879, 
p. 201. In force March 31, 1879.] R. S. 1894, § 4357. 

Said § 22 of the general act for the incorporation of towns, as passed in 1852, did 
not authorize towns to require licenses for the sale of intoxicating liquors. Several at- 
tempts have been made to amend this section: Acts 1855, p. 128; Acts 1867, p. 220; 
Acts 1877, p. 144; Acts 1879, p. 201; Acts 1885, p. 171. For reasons appearing in the 
cases cited, the amendment now in force, and, indeed, the only valid amendment ever 
enacted, is that of 1879, which is, therefore, set out, though it has heretofore been 
omitted by the compilers of the several revisions of the statutes. Copeland v. Town of 
Sheridan, Ind. Sup. Ct., Oct. 25, 1898. 

This clause is not repugnant to § 1, art. 8 of the constitution, which provides that the 
general assembly shall provide for a general and uniform system of common schools 
which shall be open to all and where tuition shall be free. Shepardson v. Gillett, 133 
Ind. 125. 

[Acts 1897, p. 176. In force April 14, 1897.] 

1201. Licensing and regulating business, — 1. That the board of 
trustees of incorporated towns shall have the following powers, in 
addition to the powers now granted by law: To license, regulate or 
restrain auction establishments, street auctions, transient salesmen, 
itinerant venders of all goods, wares and merchandise of whatsoever 
nature, denominated ''bankrupt stocks," "fire sales," "assignee's 
sales," or any other terms used for the purpose of attracting trade by 
persons, both principals and agents; also hacks and all vehicles carry- 
ing passengers for hire, and all tables, alleys, machines, devices and 
places for sports, or games kept for hire or pay, traveling peddlers, 
public exhibitions, and the sale of spirituous, vinous, malt and other 
intoxicating liquors within the corporation: Provided y That this sec- 
tion shall not apply to any traveling salesman or person selling food, 
feed, grain or vegetables, or other articles for food consumption. 
Burns' Supp. 1897, § 4357a. 

The above section applies only to ordinances enacted after its passage. Copeland v. 
Town of Sheridan, Ind. Sup. Ct., Oct 25, 1898. 



771 GOVERNMENT AND POWERS. § 1202 

[Acts 1865 S., p. 78. In force September 2, 1865.] 

1202. Shade trees. — 1. The board of trustees of any incorporated 
town shall have power, with the consent of persons owning more than 
one-half of the lots along any street (counting by lineal feet of street 
front), to authorize all persons owning or occupying such lots to in- 
close portions of the street in front of their lots, and to occupy the 
same for shade and ornamental purposes, but not for buildings or per- 
manent structures, and not so as to reduce the streets and sidewalks 
below the width of sixty feet. R. S. 1894, § 4358. 

[Acts 1867, p. 219. In force March 1, 1867.] 

1203. Fire limits. — 1. Whenever two-thirds of the owners of 
real estate within the proposed fire limits, residents within the cor- 
porate limits of such town, on any street or streets, or designated parts 
of any street or streets, of any incorporated town in this state, shall 
petition the board of trustees of such town for the passage of an ordi- 
nance establishing fire limits and preventing the erection of wooden 
buildings on such street or streets ( which petition shall accurately de- 
scribe the proposed boundaries thereof), and such board shall be satis- 
fied that said petition contains the names of two-thirds of the owners 
of real estate within such limits, and that such proposed ordinance 
would be just and expedient, they shall pass an ordinance prohibiting 
the erection of any wooden buildings within the limits described in 
such petition: Provided, however, That such fire limits shall be con- 
fined as near as practicable to the business part of such town. R. S. 
1894, § 4359. 

[Acts 1879 S., p. 204. In force May 31, 1879.] 

1204. Lighting streets. — 1. The board of trustees of any incor- 
porated town is hereby empowered, in addition to the powers they 
now have, to contract for lighting the streets of such town with gas, 
in all cases where gas-works have been erected and mains laid on the 
streets to be so lighted. Such contract shall not, however, be made 
for a longer period than one year at a time. R. S. 1894, § 4360. 

See ante, § 1136, et seq. 

Action— Debt for ligiit— Complaint.— Where in an action against a town for a sum 
alleged to be due under the terms of a written contract for electric lights, the complaint 
containing the averments, that under the terms of the contract the plaintiff furnished 
the defendant with lights, for which the defendant owed the plaintiff a certain sum 
which was due and unpaid, the complaint was good against demurrer, the plaintiff not 
being bound to anticipate and avoid any defense which defendant might have. Town 
of Petersburg v. Petersburg, etc., Co., 16 App. 151. 

1205. Tax for lighting. — 2. In all cases contemplated by the pre- 
ceding section, and where such contract has been made under said sec- 
tion, such board of trustees is hereby authorized to levy and collect a 
special tax, for such purpose, of not exceeding three dollars on the 
one thousand dollars of the taxable property within such incorporated 



§ 1206 TOWNS. 772 

tovv-n^ to be levied and collected as other corporation taxes are now lev- 
ied and collected. R. S. 1894, § 4361. 

[Acts 1S93. p. 191. In force March 2, 1893.] 

1206. Tax to pay for electric lights.— 1. That in all cases when 
the board of trustees of any incorporated town in this state shall con- 
tract with any individual or corporation for the lighting of any of the 
streets or public places of said town with electric lights, such board of 
trustees is hereby authorized to levy and collect a special tax for such 
purpose of not exceeding fifteen cents on the one hundred dollars of 
the taxable property within such incorporated town,, to be levied and 
collected as other corporation taxes are now levied and collected. 
R. S. 1894, § 4362. 

[Acts 1S93, p. 1S5. In force March 1, 1S93.] 

1207. Electric light plant — Construction. — 1. That whenever a 
majority of the voters of an incorporated town, as shown by the num- 
ber of votes cast at the latest preceding corporation election for officers 
of said town, shall petition the board of town trustees of said town to 
cause to be constructed at the expense of the town, an electric light 
plant for the purpose of furnishing public, commercial and domestic 
electric lights for said town, the board of town trustees shall proceed 
to construct said plant under the regulations hereinafter stated. R. S. 
1894, §4363. 

1208. Committee to ascertain number ot lights. — 2, The board of 
town trustees, upon the presentation oi said petition, after satisfying 
themselves that it has been signed by a majority of the number of 
votes cast at the latest preceding corporation election, shall appoint a 
committee to ascertain how many street lights will be required for the 
proper lighting of said town, and also approximate the number of 
commercial and domestic lights likely to be disposed of by said town, 
should said electric light plant be established, which committee shall 
present a written report at a subsequent meeting: of said town trustees. 
R. S. 1S94. §4364. 

1209. Keport— Action of board,— 3. When said committee's report 
is presented, it shall be examined by the board of town trustees, and 
its conclusions may be accepted and adhered to or amended, at the 
pleasure of the board of town trustees : but upon the day of its presen- 
tation the board of town trustees shall act upon it and determine the 
probable number of each description of lights which will be demanded. 
R. S. 1894. §4365. 

1210. Advertising for proposals— Bids. — 1. Upon said capacity 
being determined as in section 3 provided for, the trustees shall proceed 
to advertise in such newspapers as they shall deem best for the town, 
for proposals for building, completing and thoroughly equipping an 
electric light plant of the capacity and character determined upon: 
bids to be made by sealed proposals containing a detailed description 
of the plant bid upon, but in no case of lower capacity than that fixed 



773 • GOVERNMENT AND POWERS. § 1211 

upon by the board of town trustees, and said bids to be received at a 
meeting of the board of town trustees, to be held for that purpose, not 
sooner than thirty days, nor more than fort}^ days after the first ap- 
pearance of the advertisement for said bids. R. S. 1894, § 4366. 

1211. Letting of contract. — 5. Upon the examination of said bids, 
if it shall be found that the price asked for said plant shall exceed 
more than two per cent, of the taxable value of said town as embraced 
in the tax duplicate of said town for that current year, after subtract- 
ing from the amount of said bid any moneys in the treasury of said 
town which could be applied to said contract; then, and in that event, 
the contract shall not be let, and said petition for the erection of such 
plant shall be rejected; but if it is under two per cent, the contract 
shall then be let: Provided, That if any citizen or citizens shall in that 
time proffer to said town and secure the payment thereof of a donation 
to said town of a sufficient sum of money to reduce the sum to be paid 
from the town treasury of said town below the two per cent, of said tax 
duplicate, then said petition shall not be rejected, but the board of 
town trustees shall proceed to contract with the lowest and best bidder 
for the construction of said electric light plant. R. S. 1894, § 4367. 

1212, Bonds—Issue and sale,— 6. For the purpose of paying the 
contract price of said plant said board of town trustees are authorized 
to issue and sell the bonds of said town to such an amount not exceed- 
ing the contract price, as shall be necessary; said bonds to sell for not 
less than par value, to bear not more than 6 per cent, interest per an- 
num from the date of issue: Provided, however, That the contractors 
for said plant shall not be paid to exceed 75 per cent, of the contract 
price thereof until said plant has been successfully operated and shown 
to be fully equal to specifications embraced in said contract, for a pe- 
riod of at least ninety days after the completion of said plant. R, S. 
1894, § 4368. 

1213, Superintendent,— 7. When such electric light plant is in 
operation said board of town trustees are authorized to employ on such 
terms as they may deem best, to be embraced in an ordinance for that 
purpose, a superintendent and such other necessary help as may be 
required to operate said plant. R. S. 1894, § 4369. 

1214. Tax to pay bonds.-— 8. When the bonds are issued to raise 
money to pay for said plant said bonds shall be redeemed in not less 
than one nor more than ten years from the date thereof; and it shall 
be the duty of the trustees to levy a sufficient tax to promptly meet 
the interest thereon, and to redeem at least one-tenth of the principal 
each year until paid. R. S. 1894, § 4370. 

1215. Sale of lights.~9. Said board of town trustees shall have 
authority to provide by proper ordinance for selling to citizens of the 
town, upon such terms and prices as may be fixed by such ordinance, 
such electric lights as may be desired by citizens, but shall not in any 
case sell such lights below the cost thereof to said town, but may 
charge a fair profit thereon. R. S. 1894, § 4371. 

1216, Increase of capacity of plant. — 10. If said town shall in- 



§ 1217 TOWNS. 774 

crease so as to demand a larger number of lights than the capacity of 
the plant will furnish properl}^ the board of town trustees are author- 
ized to increase the capacity thereof so as to supply the demand, and 
are also authorized to pass all necessary ordinances to protect and 
operate said plant. R. S. 1894, § 4372. 

[Acts 1899, p. 216. In force March 2, 1899.] 

1217, Water-workSj lighting plant, street railroad, telephone and 
telegraph companies-— Franchises and contracts — Ordinances for — - 
When take effect — Referendum,— 1 . That no ordinance for the pur- 
chase or establishment of any waterworks or lighting plant, or the 
granting of any franchise for the establishment or operation of any 
waterworks, lighting plant, street railroad, telephone or telegraph 
company in any incorporated town in this state, shall go into effect 
until thirty (30) days after its passage, nor until voted upon at the 
polls, if within the said thirty (30) days a referendum is demanded 
by forty (40) per cent, of the legal voters of such incorporated town, 
as shown by the last preceding election. 

1218, Petition to submit to voters, — 2. The voters of such incor- 
porated town may, within the said thirty (30) days, file a petition 
with the clerk thereof, requiring the board of trustees of such town 
to submit such ordinance to a vote of the voters of such town, for 
their rejection or approval as hereinafter provided. 

1219, Contents of petition,— 3. Such petition shall be written or 
printed, and to be mandatory, shall be signed by at least forty (40) 
per cent, of the voters of such town. It shall contain the title of 
such ordinance or some sufficient description of the same. At least 
ten (10) of the persons signing the same shall make oath before a 
competent officer that they are themselves duly qualified voters of said 
town, and that they believe all the other persons who signed such 
petition are duly qualified voters of said town, and that they believe 
all the signatures thereto attached to be genuine, such petition to be 
filed with the clerk of said town, and such clerk shall forthwith notify 
each member of such board of trustees of the filing of said petition. 

1220, Special election— When required, — 4. If fifty (50) per 
cent, of the voters of such town shall request in such petition that 
such ordinance shall be submitted to the voters of such town to be 
voted on at a special election, the board of trustees aforesaid shall 
cause the same to be submitted at a special election to be called by 
them not less than fifteen (15) nor more than twenty (20) days from 
the filing of such petition. 

1221, When submitted at regular election,— 5. When such petition 
does not request that such ordinance be submitted to the voters at a 
special election, the board of trustees of such town shall cause the 
same to be submitted to the voters of such town at the first regular 
town election held after the expiration of fifteen (15) days from the 
filing of such petition, and shall cause the same to be placed upon the 
official ballots to be used at such election. 



I 



775 GOVERNMENT AND POWERS. § 1222 

1222, Majority of rotes cast necessary for approval — Re-enact- 
ment. — 6. Such ordinances submitted to the voters under the pre- 
ceding sections, shall not go into effect unless approved by a majority 
of the votes cast for and against the same, and if rejected by the 
voters of said town, no ordinance, substantially the same, shall be 
enacted by the said board of trustees for a period of three years from 
the date of said rejection, and if re-enacted any time after the ex- 
piration of one 3^ear from said date of rejection, the voters of said 
town shall have the right to be heard on the same, as hereinbefore 
provided. 

1223, Notice of election, — 7. The board of trustees shall cause 
notice of elections held under this act to be given by publication in a 
newspaper published in said town (if there be one) for two successive 
weekly issues, before such election, and if there be no newspaper pub- 
lished in said town, then by written or printed notices posted in three 
or more public places in said town, at least fifteen (15) days before 
said election, and they shall cause copies of said ordinance to be 
printed in convenient form and shall furnish the same to the voters 
of such town, upon their application or order, and such notice of 
election provided in this section, shall designate where such copies 
may be obtained. 

1224, Ballots, — 8. All ballots for use in special elections under 
this act, shall be prepared and furnished by the clerk of such town 
and shall be in such form that the voters may express their approval 
or disapproval by yes or no. Where ordinances under this act are 
submitted to the voters at a regular election, they shall be placed upon 
the official ballots as hereinbefore provided. 

1225, Penalty for making false affidavits. — 9 . Whoever knowingly 
or willfully makes a false affidavit, or takes a false oath, or signs a 
false certificate regarding the qualification of any person, to sign peti- 
tions under this act, shall be punished by a fine not exceeding one 
hundred dollars ($100), or by imprisonment in jail not exceeding one 
year, or by both fine and imprisonment. 

1226, Penalty for town officer failing to comply. — 10. Any mem- 
ber of any board of trustees of any incorporated town in the state of 
Indiana, or any clerk of the same, or any other person, appointed 
or authorized under this act, to carry out any of the provisions of this 
act, who fails, neglects or refuses to comply with the provisions of this 
act, shall be punished by fine not less than five hundred dollars 
($500) nor more than one thousand dollars ($1,000). 

1227, Election laws apply, — 11. The provisions of the statutes of 
this state relating to election officers, voting places, apparatus and 
blanks, preparation and form of ballots, information to voters, con- 
duct of elections, manner of voting, counting votes, records and certi- 
ficates, illegal voting, bribery, perjury and influencing votes, so far 
as applicable, shall apply to voting on ordinances under the provis- 
ions of this act. 



§ 1228 TOWNS. 776 

[1 R. S. 1852, p. 482. In force May 6, 1853.] 

1228, Public grounds and wliaryes. — 49. The trustees shall have 
jurisdiction over any commons or public ground belonging to said 
town, and shall have power to regulate, with the consent of a major- 
ity of the owners thereof, the banks, shores and wharves of that por- 
tion of any navigable stream within its corporate limits; but no ferries 
heretofore, or which may hereafter, be established by law, shall be 
prejudiced or in any manner affected by the provisions of this act. 
R. S. 1894, § 4373. 

1229, Money, how appropriated. — 24. All moneys, however de- 
rived, belonging to such corporation, shall only be appropriated for 
such objects and defraying such expenses as accrue, or necessarily 
arise, in the exercise of powers granted by this act. No appropriation 
shall be made without an order to that effect entered upon a proper 
book, to be kept for that purpose by such board. R. S. 1894, § 4374. 

1230, Ciaims. — 25. No account or claim against said town shall 
be audited or allowed by the board of trustees unless it be made out 
fully and itemized; and every such account audited shall be numbered 
from one upward, in the order they were presented, and a memo- 
randum of the same entered upon a book to be kept exclusively for that 
purpose. R. S. 1894, § 4375. 

1231, Money, how drawn, — 26. No account or claim shall be paid 
unless audited and allowed by the board as aforesaid; and no moneys 
shall be drawn from the treasury, except by a warrant upon the treas- 
urer, signed by the president of said town and attested by the clerk 
thereof. R. S. 1894, § 4376. 

1232, Loans.— 27. No incorporated town under this act shall have 
power to borrow money or incur any debt or liability unless a majority 
of the resident owners of the taxable real estate of said town shall 
petition the board of trustees to contract such debt or loan. Such 
petition shall have attached thereto an affidavit verifying the genuine- 
ness of the signatures to the same. And for any debt created thereby 
the trustees shall add to the tax duplicate of each year successively a 
levy sufficient to pay the annual interest on such debt or loan, with an 
addition of not less than five cents on the hundred dollars, to create a 
sinking fund for the liquidation of the principal thereof. [As amended, 
Acts 1891, p. 389. In force March 9, 1891.] R. S. 1894, § 4377. 

Repeal. — Prior to the amendment of this section the same was repealed by implica- 
tion by the act of March 11, 1867, so far as it relates to the issuing of bonds by incorpo- 
rated towns for the purposes specified in said act, but said section remained in full force 
except so far as it may be repealed by said act. Clark v. Towm of Noblesville, 44 Ind. 83. 

Liability for necessary articles. — A municipal corporation has full control over its 
streets and alleys, and is in duty bound to keep them in safe condition for the traveling 
public, and is liable on a promissorv^ note given for the purchase of a "reversible road 
scraper" to be operated on its streets. This section, forbidding an incorporated town 
to borrow money or incur any debt or liability, save on petition, etc., does not apply to 
the purchase of articles of indispensable necessity. Town of Fowler v. Austin, etc., 
Co., 5 App. 489, 490. 

Power to contract debt— Petition of tax-payers.— Under this section, prior to its 



i i 



GOVERNMENT AND POWERS. § 1232 



amendment, the board of trustees might, on the presentation of the petition required by 
such section, purchase fire apparatus on credit. Such purchase might be made by parol 
contract, or, where the manner in which such debt was to be contracted was not described 
by the petition, the board might direct a promissory note to be executed. Second Na- 
tional Bank, etc., v. Town of Danville, 60 Ind. 504. 

Same— Cemetery. — The trustees of towns are prohibited by this section from borrow- 
ing money or contracting a debt except pursuant to petition of property owners as pro- 
vided in the statute. A purchase of cemetery grounds on credit, in the absence of such 
petition, is unauthorized and void. Pratt v. Luther, 45 Ind. 250. 

Prior to the amendment of the section, petitions from property owners were not neces- 
sary to authorize the board of trustees to issue bonds to procure money with which to 
build school-houses. Clark v. Town of Noblesville, 44 Ind. 83. 

Ordinance to Issue bonds. — The fact that, upon presentation of the petition, and pend- 
ing the negotiations for the purchase of property, an ordinance is passed for the issue 
and sale of bonds to realize means for the purchase of such property, does not, where 
in fact no such bonds are issued, exhaust the power of the board, under such petition, 
to make such purchase in some other manner, though such ordinance remains unre- 
pealed. Second National Bank, etc., v. Town of Danville, 60 Ind. 505. 

Kemonstrance to petition— Withdrawal of sig-natures.— Where after the board of 
trustees had granted the prayer of the petition and entered into negotiations to make 
the purchase prayed for, the fact that a remonstrance was presented to the board, pur- 
porting to be, but unaccompanied by any evidence that it was, signed by a sufficient 
number of the signers of the petition to reduce the qualified signers thereon below the 
number required, will not avoid a contract subsequently entered into by the board pur- 
suant to such petition. Second National Bank, etc., v. Town of Danville, 60 Ind. 504. 

Bonds — Commercial paper. — Bonds of a municipal corporation duly issued under 
authority of law, payable to borrower, for definite sums of money at specified times, are 
regarded as commercial paper and are governed by the law merchant. Myers v. City 
of Jeffersonville, 145 Ind. 431; City of Bloomington v. Smith, 123 Ind. 41; Board, etc., 
V. Bright, 18 Ind. 93; Gardner v. Haney, 86 Ind. 17; City of Mt. Vernon v. Hovey, 52 
Ind. 563 ; Hainer Munic. Securities, §§ 251-258. 

Municipal bonds— Towns can not issue neg-otiable securities.— Under the laws in 
force in May, 1878 (R. S. 1894, §§ 4357, 4377, 5975, 5976), upon the subject of the power 
of towns to borrow money, contract loans, incur debts and issue bonds, towns had no 
power of issuing, for sale in open market, negotiable securities in the form of bonds 
and coupons, which, in the hands of bona fide purchasers before maturity, will be sub- 
ject to no legal or equitable defenses in favor of the maker. Merrill v. Monticello, 138 
U. S. 673 ; Hopper v. Covington, 118 U. S. 148. See Hainer Munic. Securities, §§ 251- 
258. 

Lig-hting" contract— Debt — Statute construed.— A contract for Mghting a town, the 
lights to be paid for annually as furnished, does not create a debt within the meaning 
of this section. The contract does not create an indebtedness for the aggregate sum of 
all the yearly installments, since the debt for each year does not come into existence 
until the compensation for each year has been earned. Poland v. Town of Frankton, 
142 Ind. 546 ; Seward v. Town of Liberty, 142 Ind. 551 ; Crowder v. Town of Sullivan, 
128 Ind. 486; Hainer Munic. Securities, § 43. 

Current expenses— Lig'ht— Water, etc.— The expense of light, water, labor and the 
like is essential to the maintenance of corporate existence, and constitutes current ex- 
penses, payable out of the current revenues, which may be applied to such purpose even 
though the effect is to postpone judgment or other creditors. Poland v. Town of 
Prankton, 142 Ind. 546; City of Valparaiso v. Gardner, 97 Ind. 1; Town of Powler v. 
Austin, etc., Co., 5 App. 489. 

Injunction— Contract for lig-hting\— An allegation in the complaint in an action to 



§ 1233 TOWNS. 778 

restrain a town from entering into a contract for lighting its streets, ''that the town will 
not have money to meet its indebtedness when same matures above the amounts neces- 
sary for necessary expenses of said town, and will not receive from the present levy 
sufficient funds to pay said indebtedness, and can not make a levy in time to pay the 
same as it matures," is insufficient as a mere conclusion. Foland v. Town of Frankton, 
142 Ind. 546. 

Erection and completion of school building's— Bonds.— For decisions arising upon 
questions under act of March 8, 1873, authorizing cities and towns to issue bonds for the 
erection and completion of school buildings, R, S. 1894, § 5975, et seq., see Williams v. 
Town of Albion, 58 Ind. 329; Gardner v. Haney, 86 Ind. 17; Wilcoxon v. City of Bluff- 
ton, Ind. Sup. Ct., June 14, 1899. 

If a town contract for the erection of a school-house and agree to pay a sum therefor 
which will raise the indebtedness of the town above the constitutional limit, the portion 
of the contract within the constitutional limit will be a valid indebtedness and a suf- 
ficient consideration for the contract, and, in such case, the contractors and their sure- 
ties can not escape liability for failure to complete the building on the ground that the 
contract was void. School Town of Winamac v. Hess, 151 Ind. 229. 

Power to issue bonds. — A town can not, under the constitution of this state, issue 
bonds to obtain funds with which to rebuild a school-house, when the issuance of the 
bonds will create a debt in excess of two per centum of the taxable value of the prop- 
erty within the corporate limits of the town. Town of Winamac v. Huddleston, 132 
Ind. 217, 218. 

Injunction — Unauthorized issue of bonds.— A tax-payer may maintain an injunc- 
tion to prevent the issuance of corporate bonds without authority. Town of Winamac 
V. Huddleston, 132 Ind. 217; Denny v. Denny, 113 Ind. 22; Hainer Munic. Securities, 
§§ 471, 480. 

Bonds not authorized— Ag^ent for sale— Liability of sureties.— If the bonds issued 
by a municipal corporation are not authorized by law, and the proceeds thereof come 
into the hands of an agent for the sale of the same, neither the agent nor his sureties 
upon his bond can be heard say that the municipality has transcended its power in 
issuing the bonds and placing them in the hands of the agent for sale. Wilson v. Town 
of Monticello, 85 Ind. 10. 

[Acts 1875, p. 149. In force February 25, 1875.] 

1233. Bonds, — 1. Any incorporated town in this state which 
shall have, heretofore, by the action of its board of trustees, com- 
menced the erection of any public building, to be used as a market- 
house, engine-house, or for other public purposes, and shall not have 
the necessary means with which to complete such building, on the 
passage of an ordinance, authorizing the same, by the board of trus- 
tees of said incorporated town, may issue the bonds of such town, to 
an amount not exceeding in the aggregate ten thoiisand dollars, in 
denominations not less than fifty dollars nor more than five hundred 
dollars, and payable at any place that may be designated in the bonds, 
the principal in not less than one year nor more than ten years after 
the date of such bonds, and the interest annually or semi-annually, as 
may be therein provided, to provide the means with which to com- 
plete such building: Provided, That such bonds shall not be sold at a 
price less than ninety-four cents on the dollar, nor bear a greater rate 
of interest than eight per cent, per annum. R. S. 1894, § 4378. 

Bonds— Coupons. — Where a municipal corporation has powder to negotiate bonds for 
a certain purpose, with interest payable at stated intervals, the payment of the interest 



779 GOVEENMENT AND POWERS. § 1234 

may be provided for by coupons attached to the bonds, executed at the same time and 
referred to in the bonds, and themselves referring to the bonds to which they are at- 
tached, of which they in substanbe constitute part. Such coupon, detached from its 
bond, is negotiable. Town of Cicero v. Clifford, 53 Ind. 191. 

123 J:, Proceeds paid treasurer, — 2. The proceeds of the sales of 
such bonds shall be paid to the treasurer of said incorporated town to 
enable said board of trustees to complete such building; but before 
payment to said treasurer he shall file with the board of trustees a 
bond, payable to the state of Indiana, in a sum not less than the full 
amount of the said money to be paid to him, and with security to be 
approved b}^ said board of trustees, conditioned for the faithful and 
honest application of said money to the purpose for which the same 
was provided. R. S. 1894, § 4379. 

1235. Tax to pay interest. — 3. In addition to the levy of the tax 
by incorporated towns for general purposes, now authorized by law, 
the board of trustees of any incorporated town which shall avail them- 
selves of the provisions of this act are hereby authorized and required 
to levy, annually, a special additional tax, at the same time and in 
the same manner as other taxes of such town are levied, sufficient to 
pay the interest of said bonds falling due, which additional special tax 
shall be assessed and collected as the taxes for state and county reve- 
nue are assessed and collected. And the treasurer of said town shall 
keep accurate accounts of the revenue arising from such special tax, 
and shall, in his reports, when required by the board of trustees, show 
the amount thereof, if any, remaining delinquent. He shall pay out 
the same only by the authority of the board of trustees of such town, 
and shall permit the same to be applied to no other purpose than the 
payment of the principal and interest of such bonds: Provided, always, 
That the additional special tax hereby authorized shall not, in any one 
year, exceed fifty cents on each one hundred dollars of taxable prop- 
erty and one dollar on each poll. R. S. 1894, § 4380. 

[1 R. S. 1852, p. 482. In force May 6, 1853.] 

1236. Fines. — 23. Such board of trustees shall have power to 
enact fines, penalties and forfeitures for violations of this act, or of 
any by-law or ordinance by them established, not exceeding ten dol- 
lars for any one offense, which may be recovered by an action in the 
name of the corporation. But such board may remit the whole or any 
part of the fine, penalty or forfeiture: Provided, That the fine assessed 
for the violation of any ordinance requiring a license shall not be less 
than the amount required to be paid for such license, although it may 
exceed the sum of ten dollars. R. S. 1894, § 4381. 

Misdemeanor — Invalidity of ordinance.— Where an act is made a misdemeanor, 
punishable under the criminal law of the state, a city or town can not enact an ordi- 
nance prescribing a penalty for the same offense. City of Indianapolis v. Huegele, 115 
Ind. 581 ; City of Indianapolis v. Higgins, 141 Ind. 1 ; Jett v. City of Richmond, 78 Ind. 
316. 

The statute prohibiting towns and cities from making acts punishable by ordinance 



§ 1237 TOWNS. 780 

which are made public offenses punishable by the state does not apply to an ordinance 
providing a punishment for selling intoxicating liquors without first procuring a license 
from the town or city, that not being an offense under the statutes of the state. City of 
Frankfort V. Aughe, 114 Ind. 77; Clevenger v. Town of Eushville, 90 Ind. 258; Zeller 
V. City of Crawfordsville, 90 Ind. 262. 

Prior to the enactment of the statute prohibiting towns and cities from making acts 
punishable by ordinance which are made public offenses punishable by the state, a town 
may be authorized to provide by ordinance for the punishment of an act already pun- 
ishable by the criminal law of the state. "Williams v. City of Warsaw, 60 Ind. 457; Am- 
brose V. State, 6 Ind. 351 ; Sloan v. State, 8 Blackf. 361. 

Impounding" animals. — Towns have no power to provide for impounding and selling 
animals found at large in the corporate limits. Slessman v. Crozier, 80 Ind. 487. 

Yaliclity of ordinance, when not in question— Action.— An action to recover the pen- 
alty prescribed for the violation of an ordinance does not necessarily call in question 
the validity of the ordinance. Griffee v. Town of Summitville, 10 App. 332. 

[Acts 1877 S., p. 75. In force March 12, 1877.] 

1237, Suits — Imprisonment. — 57. Any person violating the pro- 
visions of any ordinance of a town organized under this act, to which 
there may be a penalty affixed, may be prosecuted before a justice of 
the peace of such town, and in case there be no acting justice therein, 
then before the justice of the peace residing nearest to said town, in 
the county in which such town is situated, upon a warrant issued by 
such justice, as in cases of misdemeanors, and such person, upon con- 
viction, shall stand committed until the judgment and costs are paid 
or replevied, and in default of payment or replevy of such judgment 
and costs, the defendant, unless a female, ma}^ be adjudged and re- 
quired to pay the same by manual labor upon the streets or other pub- 
lic works of said town, under the control of the marshal of said town, for 
which labor such defendant shall be allowed on such judgment and 
costs seventy-five cents per day. It shall be the duty of such marshal, 
or such other officer as the board of trustees of such town may direct, 
to work such defendant not less than six nor more than ten hours per 
day, according to the season, and each evening to return him to the 
custody of the keeper of the prison in whose custody such defendant 
w^as committed, and upon the full payment, as aforesaid, of such 
judgment, costs and accrued costs, such defendant shall be fully dis- 
charged. And such marshal is hereby authorized and required to 
perform all the duties herein prescribed, and to use all proper means 
thereto. And the board of trustees are hereby vested with full author- 
ity to pass by-laws and ordinances for compelling the enforcement of 
such manual labor by such defendant, by the use of sufficient force 
and means as they may deem right and proper. Such defendant may 
be committed to the town prison, or if such town has no prison, then 
to the county prison of the county in which such town is situated, and 
in the latter case it shall be the duty of such person having charge of 
such prison to receive such defendant and obey the judgment of the 
court in reference to him, and for the keeping, custody and boarding 
of said defendant, the keeper of such prison shall receive fifty cents 
per day, to be paid by such town on the presentation of an itemized 



781 GOVERNMENT AND POWERS. § 1237 

account therefor, and he shall receive only one commitment and one 
discharging fee, and such defendant may, at any time, replevy and 
pay such judgment and costs. And in case he has performed labor 
under such judgment, he shall be entitled to a credit for the same, to 
the amount of labor performed, and the balance may be paid or re- 
plevied as aforesaid. [As amended, Acts 1883, p. 132. In force June 
5, 1883.] R. S. 1894, § 4382. 

See ante, § 1198. 

Actions for violation of ordinance— Civil action.— Actions to recover penalties for 
the violation of ordinances of municipal corporations are civil actions. Town of Brook- 
ville V. Gagle, 73 Ind. 117; City of Greensburg v. Corwin, 58 Ind. 518; City of Goshen 
V. Croxton, 34 Ind. 239; City of Hammond v. New York, etc., E. Co., 126 Ind. 597; 
Shea V. City of Muncie, 148 Ind. 14; Clevenger v. Town of Eushville, 90 Ind. 258; 
Town of Indianapolis V. Fairchild, 1 Ind. 315; 1 Beach Pub. Corp., §553; 1 Dillon 
Munic. Corp., § 409, et seq. 

Penalty, not debt — Imprisonment. — A penalty for the violation of a town ordinance 
is not a debt, in the sense of the constitution, which forbids imprisonment for debt. 
Hardenbrook v. Town of Lig-onier, 95 Ind. 70; McCool v. State, 23 Ind. 127; Mcllvain 
V. State, 87 Ind. 602; 1 Beach Pub. Corp., §525. 

Complaint — Averments. — In an action for the violation of a town ordinance, it is 
not necessary to aver that the members of the board of trustees which passed it were 
duly elected, nor that they had authority to pass the ordinance, nor that it has been 
published. Hardenbrook v. Town of Ligonier, 95 Ind. 70. 

Same. — A complaint to recover the penalty for a violation of a town ordinance is suf- 
ficient, where it contains averments of the proper enactment of such ordinance, the 
violation of its provisions by the defendant, and the acts constituting such violation. 
Town of Brookville v. Gagle, 73 Ind. 117; Wagner v. Town of Garrett, 118 Ind. 114; 
Town of Martinsville v. Frieze, 33 Ind. 507 ; Hardenbrook v. Town of Ligonier, 95 Ind. 70. 

Same — Ordinance. — In a complaint predicated on a town ordinance, it is sutficient 
to aver that the ordinance was duly adopted by the board of trustees of the town, and 
to set out, in or with the complaint, so much of the ordinance as relates to the action. 
Hardenbrook v. Town of Ligonier, 95 Ind. 70; Wagner v. Town of Garrett, 118 Ind- 
114; Vinson v. Town of Monticello, 118 Ind. 103; Clevenger v. Town of Eushville, 90 
Ind. 258. 

Same— Sufficiency of complaint— Exhibited ordinance.— The ordinance violated 
gives the right of action, and is so far the foundation of the suit that a copy filed with 
the complaint will be looked to in considering whether a demurrer was correctly over- 
ruled, without other averment than that the ordinance "is attached to and made a part 
of the complaint." Wagner v. Town of Garrett, 118 Ind. 114. 

Same— Copy of ordinance. — In an action for the violation of an ordinance, so much 
of the ordinance as is claimed to have been violated must be set forth. Where two or 
more sections are relied upon as defining the offense and prescribing the penalty, both 
sections should be set out. Clevenger v. Town of Eushville, 90 Ind. 258; Wagner v. 
Town of Garrett, 118 Ind. 114; Lake Erie, etc., E. Co. v. City of Noblesville, 15 App. 
697; Lake Erie, etc., E. Co. v. City of Noblesville, 16 App. 20.' 

Same— Ordinance — Proof. — Unless the publication of an ordinance is denied under 
oath proof of such publication is not required. Hardenbrook v. Town of Ligonier, 95 
Ind. 70; Lake Erie, etc., E. Co. v. City of Noblesville, 15 App. 697; Green v. City of 
Indianapolis, 25 Ind. 490; Lake Erie, etc., E. Co. v. City of Noblesville, 16 App. 20. 

Same — Court— Jurisdiction. — Circuit courts have jurisdiction of actions for the re- 
covery of penalties for the violation of town ordinances. Town of Brookville v. Gagle, 
73 Ind. 117; Eedden v. Town of Covington, 29 Ind. 118. 



§ 1238 TOWNS. 782 

Justices of the peace. — An action for the violation of a town ordinance may be insti- 
tuted before any justice of the peace residing within the corporate limits. Town of 
Spencer v. Cline, 28 Ind. 51. 

Jiirisdiction of justices. — The jurisdiction of a justice for the violation of town ordi- 
nances, as to amount, is the same as in other civil actions. Clevenger v. Town of Rush- 
ville, 90 Ind. 258. 

Appeal. — An appeal can not be prosecuted from a cause originating before a justice 
of the peace, on a penalty prescribed by a city or town ordinance, where the amount in 
controversy, exclusive of interest and costs, is less than fifty dollars, when the validity 
of the ordinance is not in question. Griffee v. Town of Summitville, 10 App. 332; City 
of Greensburg v. Corwin, 58 Ind. 518; Hardenbrook v. Town of Ligonier, 95 Ind. 70. 

Action on ordinance — Collateral attack. — In an action upon a town ordinance to re- 
cover a license fee required by ordinance of retail liquor dealers, an answer that the 
election at which the trustees who passed the ordinance were elected was not con- 
ducted by the then trustees, as inspectors, but by disqualified persons, etc., was bad, as 
the question of the rjght of the trustees to exercise their ofiice could not be questioned 
collaterally, and the answer did not negative the fact that they were trustees de facto. 
Redden v. Town of Covington, 29 Ind. 118. 

Repeal— Effect on pending' prosecution,— If, during the progress of a prosecution, 
the ordinance on which it is based is repealed, the prosecution must fail, unless the re- 
pealing ordinance contains some express provisions whereby all pending prosecutions 
are saved from its operations. Horr and Bemis Munic. Ords., § 63; Terre Haute, etc., 
R. Co. V. City of South Bend, 146 Ind. 239; 1 Dillon Munic. Corp. (4th ed.), § 314 n. ; 1 
Beach Pub. Corp., § 519. 

But if an ordinance under which a prosecution is pending is re-enacted in substan- 
tially the same form, its effect is to continue in force the provisions of the original ordi- 
nance and does not abate or affect the prosecution. Cheezem v. State, 2 Ind. 149; Mar- 
tindale v. Martindale, 10 Ind. 666; Cordell v. State, 22 Ind. 1; 1 Beach Pub. Corp., 
§521. 

Repeal of ordinance by Implication. — Ordinances as statutes may be repealed by 
imphcation. ^Miere a statute or ordinance covers the whole subject-matter of an older 
one, adds new provisions, prescribes different penalties, and is evidently intended to 
supersede and take the place of the prior statute or ordinance, the latter is repealed by 
imphcation. Terre Haute, etc., R. Co. v. City of South Bend, 146 Ind. 239; 1 Beach 
Pub. Corp., § 521. 

ARTICLE 3.-TAXATI0N. 

SEC. SEC. 

1238. Annual tax, when fixed. 1244. Redemption of real estate. 

1239. Tax levy. 1245. Duplicate to auditor. 

1240. Warrant for collection. 1246. County treasurer to collect. 

1241. Appraisement of real estate in cer- 1247. Road tax. 

tain cases. 1248. Levy of road tax. 

1242. Duty of county auditor. 1249. Tax to pay for water-works. 

1243. Tax, how collected. 

[Acts 1855, p. 130. In force August 17, 1855.] 

1238. Annual tax, when fixed, — 30. The board of trustees shall, 
before the third Tuesday in May of each year after the town shall have 
been incorporated, determine the amount of general tax for the cur- 
rent year; but the tax for the year in which the town is incorporated 



783 TAXATION. § 1239 

may be determined, at any time, by the board of trustees. R. S. 1894, 
§ 4383. 

Greneral laws, — Some of the provisions of the statutes compiled under this title, and 
decisions cited thereunder, may not now be applicable. The general laws of the state 
upon the subject of taxation control municipal taxation so far as applicable. See ante^ 
§ 1057. See general law. Taxation, R. S. 1894, ch. 108 (R. S. 1894, § 8408, et seq.), Bums' 
Supp- 1897, ch. 108 (§8411, et seq.) ; and Acts 1899, pp. 422, 430, 431^ 491, 516. 

Time of levj". — The above section was amended hj implication by the act of March 
10, 1879, and under the latter act the boards of trustees of towns need not levy the tax 
for each year until after the county board of equalization has adjourned. Worley v. 
Harris, 82 Ind. 493; Kreth v. Larrew, 104 Ind. 363. 

Same, — Prior to the act of 1879, taxes could not be levied after the third Tuesday of 
May of each year. Town of Williamsport v. Kent, 14 Ind. 306; Clark v. Town of No- 
blesville, 44 Ind. 83. 

Statute construed. — The words, "determine the amount of general tax for the cur- 
rent year," as used in this section, mean the final determination of the board as to the 
amount, assessment and levy. Kretli v. Larrew, 104 Ind. 363; Worley v. Harris, 82 
Ind. 493. 

Tax levy — When void. — A tax levy by the trustees of a town, to be valid, must be 
levied by a legally constituted board of trustees, upon property liable to be taxed; and 
the necessary forms in assessing the property, levying the tax and placing it upon the 
duplicate must be complied with. Millikin v. Town of Bloomington, 49 Ind. 62. 

When the action of the board determining the amount of tax to be levied is reduced 
to writing and signed by the president and clerk, the failure to make a formal record 
thereof will invalidate a tax sale. Scarry v. Lewis, 133 Ind. 96. 

[1 R. S. 1852, p. 482. In force May 6, 1853.] 

1239. Tax levy, — 33. When the assessment-roll shall have been 
corrected and completed, the trustees shall levy a tax upon the taxa- 
ble property of said town to such an amount as they may deem neces- 
sary, and shall set opposite the name of each person taxed a descrip- 
tion and valuation of the property charged therewith, and the amount 
of tax assessed against such person. And when such tax-list shall 
have been made, they shall cause a copy thereof, with a warrant 
annexed, to be delivered to the marshal of such town. The original 
assessment-roll and tax-list shall be deposited with the treasurer of 
such town, who is hereby charged with the safe custody of the same. 
R. S. 1894, § 4384. 

Residents — Personal property. — Where a person resides in a town and his personal 
property belongs elsewhere, such town has no authority to assess taxes upon such prop- 
erty, and the collection of the same will be enjoined. The situs of personal property 
for the purpose of taxation does not follow the domicile of the owner. Eversole v. 
Cook, 92 Ind. 222; Cook v. Town of Port Fulton, 106 Ind. 170. 

Non-residents. — If personal property is used in business in this state it should be 
assessed for taxes, even though the owner claims to be a citizen of, and domiciled in 
another state ; and this is true of moneys and credits as well as of other forms of per- 
sonal property. Buck v. Miller, 147 Ind. 586. 

Same. — The personal property of non-residents should be assessed to the owner or 
person having the control thereof in the township, town or city where the same may be. 
Buck V. Miller, 147 Ind. 586. 

Water craft. — Water craft must be listed for taxation at the place of the owner's 



§ 1240 TOWNS. 784 

residence, without regard to its actual situation ; and where two members of a firm 
owning the craft lived in one town, and the other partner in another town in same 
county, the craft was subject to taxation in the town where the two partners resided. 
Cook V. Town of Port Fulton, 106 Ind. 170. 

Personal property defined. — For the purposes of taxation, the term "personal prop- 
erty" includes bonds, notes, choses in action, and other evidences of credit. The situs 
of such property for taxation must be the place where it is used in business. Buck v. 
Miller, 147 Ind. 586. 

Lands and personal property situated within the corporate limits of a town but used 
for farm purposes are subject to taxation for town purposes. Such taxation is not a 
taking of private property for public use without compensation contrary to the pro- 
visions of the constitution. Town of Cicero v. Sanders, 62 Ind. 208 ; City of Logansport 
v. Seybold, 59 Ind. 225; City of Aurora v. West, 9 Ind. 74. 

1240. Warrant for collection, — 34. Such warrant shall be under 
the seal of the corporation, signed by the president and trustees, or a 
majority of them, and attested by the clerk, and shall command the 
marshal to collect the taxes specified in the duplicate within ninety 
days, and pay over the same, and make return of said warrant to the 
treasurer of said town. Such trustees may renew such warrant for 
any period not exceeding thirty days. R. S. 1894, § 4385. 

Wrongful assessment— Yoluntary payment.— In order to recover back money from 
a municipal corporation, under the common law, upon the ground of the illegality of a 
tax, the payment must have been made upon compulsion, and not voluntarily. Igno- 
rance of the illegality of the assessment at the time of the payment of the tax is insuffi- 
cient. Simonson v. Town of West Harrison, 5 App. 459. 

There is no statute in this state requiring an incorporated town to refund taxes 
which were wrongfully assessed and paid. Simonson v. Town of West Harrison, 5 
App. 459. 

Tax sales — Caveat emptor. — The doctrine of caveat emptor applies in its fullest extent 
to tax sales. Worley v. Town of Cicero, 110 Ind. 208; City of Logansport v. Hum- 
phrey, 84 Ind. 467 ; Churchman v. City of Indianapolis, 110 Ind. 259. 

Private sale. — Eeal estate can not be sold at private sale by towns for delinquent 
taxes. Stevens v. Wilhams, 70 Ind. 536; Worley v. Town of Cicero, 110 Ind. 208. 

Void sale— Recovery of purchase-money. — If the sale is void, the purchase-money 
can not be recovered. Stevens v. Wilhams, 70 Ind. 536; Worley v. Town of Cicero, 
110 Ind. 208; Simonson v. Town of West Harrison, 5 App. 459. 

Construction of statute. — A statute authorizing the sale of lands for delinquent taxes 
must be strictly construed. Stevens v. Williams, 70 Ind. 536. 

Power of marshal — Warrant. — When the town marshal has received the tax dupli- 
cate of his town, and the warrant attached thereto, they confer upon him the same 
powers as an execution issued to him by a justice of peace, and he may seize the prop- 
erty of any tax-payer on such duphcate any place within the county wherein such 
marshal's town is situated. Totvti of Andrews v. Sellers, 11 App. 301 ; Wise v. East- 
ham, 30 Ind. 133. 

[Acts 1893, p. 190. In force March 2, 1893.] 

1241. Appraisement of real estate in certain cases, — 1. That where 
a town has been or may be hereafter incorporated more than one year 
prior to the time fixed by law for the assessment and appraisement of 
real estate for the purposes of taxation, it shall be the duty of the as- 



785 TAXATION. § 1242 

sessor of the township in which said incorporated town is situated to 
assess and appraise all of the real estate in said town in the manner 
provided by law for the appraisement and assessment of real estate in 
towns at the regular periods for the appraisement and assessment of 
real estate now or hereafter determined by law. And said appraise- 
ment and assessment herein provided for shall be made at the time 
the said assessor makes the appraisement and assessment of personal 
property in his township, and returned to the auditor of the county 
or counties in which said town is situate at the time said assessor re- 
turns the assessment and appraisement of personal property in the 
township or townships at the next succeeding assessment after the in- 
corporation of said town. R. S. 1894, § 4386. 

1242. Duty of county auditor. — 2. To enable the assessor to make 
the appraisement and assessment required of him by section one ( 1 ) 
of this act, the auditor of the county or counties wherein said town is 
situate, shall on or before the first Monday in April succeeding the in- 
corporation of said town, upon written request of the board of trustees 
of said town, make out and deliver to the assessor of the township or 
townships wherein said incorporated town is situate, a list of all the 
lands and lots within the corporate limits of said town, together with 
the names of the owners of each separate tract, parcel or lot as shown 
by the records in the office of said auditor, in tabular form. R. S. 
1894, § 4387. 

[1 R. S. 1852, p. 482. In force May 6, 1853.] 

1243, Tax, how collected. — 35. The marshal shall collect the 
taxes on said duplicate when so required, and shall have the same 
power to enforce collections and shall be governed by the same rules 
and regulations as county treasurers and county auditors; and shall 
have authority, in like manner, to collect by distress and sale, and to 
make conveyances and certificates of real estate sold by virtue of such 
sale. Such sale, if at a county-seat, shall be at the door of the court- 
house or place of holding court; and, if not at the county-seat, it shall 
be held at the door of the town bailor place of meeting of the board of 
trustees; and the clerk of said board shall perform the like duties, at 
said sale, as are required of the county auditor at a sale for state and 
county taxes; and all deeds or conveyances for lands so sold for taxes 
shall be prima facie evidence of the validity of such purchase. R. S. 
1894, § 4388. 

Property seized for taxes— Replevin— Trover,— Eeplevin, under the statute, is a 
possessory action, and if it appears upon a trial that the property was taken for a tax. 
the plaintiff will not be entitled to it. In such case, if the seizure was wrongful, the 
injured party is remitted to his action for trespass or trover, or other proper action. 
The illegality of the tax in such case can not be considered. Town of Andrews v. Sell- 
ers, 11 App. 301. 

Strang"er's property seized for tax. — But if the property of a person is seized who 
does not owe the tax, he may maintain replevin for the property against the tax collec- 
tor receiving such property. Town of Andrews v. Sellers, 11 App. 301. 

Demand before levy.— A seizure of property for taxes is not illegal because of the f ail- 
ClT. AND To.— 50 



§ 1244 TOWNS. 786 

ure of the tax collector to first make a demand of payment of the person owing such 
taxes. Town of Andrews v. Sellers, 11 App. 301, 

Tax sale— Caveat emptor.— The doctrine of caveat emptor applies in its fullest extent 
to tax sales. Worley v. Town of Cicero, 110 Ind. 208. 

Statutory construction.— A statute authorizing the sale of lands for delinquent taxes 
must be strictly construed. Stevens v. Williams, 70 Ind. 536. 

Private sale — Void — Lien. — A sale of lands, by the marshal of a town, at private 
sale, for delinquent taxes, is unauthorized and void; nor can the purchaser enforce a 
lien for, or recover back, the purchase-money. Stevens v. Williams, 70 Ind. 636. 

Invalid sale — Lien of state. — A sale of land for taxes made in violation of a manda- 
tor}^ statute vests in the purchaser the lien of the state ; and if, therefore, the land sold 
was subject to taxation, and the taxes had not been paid, and the description was suf- 
ficient to identify the property, and the sale was made by authority of law, the sale 
would be valid to transfer the lien, notwithstanding there were omissions and irregular- 
ities which would render the sale invalid to convey title. Scarry v. Lewis, 133 Ind. 96. 

Tax deed prima facie evidence of lien. — The introduction of a tax deed in evidence 
makes a prima facie case of the existence of a lien, notwithstanding an admission that 
the proceedings upon which the sale was based w^ere irregular and insuflicient to convey 
title. Scarry v. Lewis, 133 Ind. 96. 

Estoppel — Additions to town— Collateral attack.— Where additions have been 
made to a town, and the town has exercised control over such additions for ten or fifteen 
years, expending large sums of money in improving the streets of those additions, and 
in the erection of school buildings, etc., and where a person had lived in one of the 
additions for a number of years, had voted in the town, had been elected to offices of 
the town, under such circumstances he can not be allowed to question the vahdity of 
the annexation proceedings for the purpose of defeating a tax lien on his land in such 
additions, simply because in making said additions the strict letter of the law had not 
been complied with ; nor are such objections available in a collateral attack. Scarry v. 
Lewis, 133 Ind. 96. 

Invalid sale— Refunding* taxes.— If a sale is invalid the town is not liable to the 
purchaser for the purchase-money ; there is no statute requiring towns to refund the 
taxes illegally assessed and paid. Worley v. Town of Cicero, 110 Ind. 208; Simonson 
V. Town of West Harrison, 5 App. 459. 

Common law action — Voluntary payment. — In order to recover back money from a 
municipal corporation, under the common law, upon the ground of the illegality of the 
tax, the payment must have been made upon compulsion and not voluntarily. Igno- 
rance of the illegality of the assessment at the time of the payment of the tax is insuf- 
ficient. Simonson v. Town of West Harrison, 5 App. 459. 

Illeg'al taxes — Injunction. — If illegal taxes are assessed and threatened to be col- 
lected, the appropriate remedy to restrain their collection is by injunction. Toledo, 
etc., R. Co. V. City of Lafayette, 22 Ind. 262; City of Peru v. Bearss, b^ Ind. 576; City 
of Delphi V. Startzman, 104 Ind. 343 ; City of Delphi v. Bowen, 61 Ind. 29. 

Irreg'ularities — Injunction. — Irregularities, or the neglect of mere forms in the as- 
sessment of taxes, where there is authority to levy the tax, will not be sufficient cause 
to enjoin the collection thereof. Jones v. Summer, 27 Ind. 510; Ricketts v. Spraker, 77 
Ind. 371 ; Reynolds v. Bowen, 138 Ind. 434; Florer, etc. v. McAffee, 135 Ind. 540. 

1244, Eedemption of real estate, — 36. Any real estate sold by 
virtue of this act shall be redeemable under the same regulations and 
restrictions as real estate sold for county and state taxes is made re- 
deemable. All monej^s for the redemption of such real estate shall be 
paid to the treasurer of the corporation. R. S. 1894, § 4389. 

1345, Duplicate to auditor, — 37. The trustees of such town may, 



787 IMPROVEMENT OF STREETS. § 1246 

at their option, deliver the tax duplicate to the auditor of the proper 
count}' , on or before the first day of August in each year, instead of to 
the marshal of such town; and said auditor shall enter said tax, and, 
if delinquent, the interest and penalty thereon, upon his duplicate. 
R. S. 1894, § 4390. 

1246. County treasurer to collect. — 38. The treasurer of such 
county shall collect the corporation taxes upon such duplicate as other 
taxes are collected, and pay the same over to the treasurer of such 
corporation. The auditor and treasurer shall be allowed and paid by 
the corporation the same compensation as is paid by the county for 
like services. R. S. 1894, § 4391. 

1347. Koad tax. — 47. Nothing contained in this act shall exempt 
the inhabitants of any town from the payment of highway taxes le- 
gally assessed, nor from the formation of one or more road districts 
irrespective of the corporate limits of such town. R. S. 1894, § 4392. 

[Acts 1881 S., p. 708. In force September 19, 1881.] 

1248, Levy of road tax, — 5. The town trustees shall have power 
to levy a road tax not to exceed twenty-five cents on the one hundred 
dollars' taxable property within such corporation, in addition to the 
powers now conferred upon them by law for the levy and collection of 
taxes : Provided, That the board of commissioners or township trust- 
ees shall have no power or authority to levy a road tax on any prop- 
erty within the corporate limits of such town. R. S. 1894, § 4393. 

[Acts 1897, p. 263. In force March 8, 1897.] 

1249. Tax to pay for water works. — 1. That in all cases where 
the board of trustees of any incorporated town in this state shall, or 
have heretofore contracted with any corporation, person or firm for 
supplying said town with water for fire protection and other purposes, 
or where any incorporated town shall, or has heretofore purchased 
any water works system located within said incorporated town, then 
and in either of said cases : Provided, Said town has not incurred and 
shall not hereby be authorized to incur an indebtedness of more than 
two (2) per cent, of the amount of taxable property of said town, as 
provided in the constitution of the state of Indiana ; the board of 
trustees of said incorporated town are hereby authorized to levy and 
collect an annual special tax for paying said contract price for said 
water so furnished or for paying the purchase price of said water 
works system of not to exceed forty cents on the one hundred dollars 
of the taxable property within such incorporated town, to be levied 
and collected as other corporation taxes are levied and collected. 
Burns' Supp. 1897, § 4393a. 



Street improvement. 
Street improvement. 
Cost, how apportioned. 
Cost, liow collected. 





ARTICLE 4.— IMPROVEMI 


SEC. 


SEC. 


1250. 


Sidewalks. 1254. 


1251. 


Requisites of sidewalk ordinance. 1255. 


1252. 


Owner failing, town makes. 1250. 


1253. 


Cost, how recovered. 1257. 



§ 1250 TOWNS. 788 

[Acts 1859, p. 184. In force February 14, 1859.] 

1250. Sidewalks* — 1. Whenever, in the opinion of the board of 
trustees of any incorporated town in this state, public convenience re- 
quires that the sidewalks of any street in such town should be graded 
or paved or planked, such board of trustees may, by an ordinance, 
compel the owners of lots adjoining such street to grade, pave, or 
plank the same. R. S. 1894, § 4394. 

See ante, § 1195, and post, § 1258, and Cities and Towns, ante, § 1107, et seq. 

This section was not repealed by the act of 1869, E. S. 1894, § 4401 ; nor by the act of 
March 8, 1889, R. S. 1894, §4288. Wiles v. Hoss, 114 Ind. 371; Allen v. Town of 
Salem, 10 App. 650; Shrum v. Town of Salem, 13 App. 115. 

Sidewalks— ImproTement. — Under this statute sidewalks only can be improved ; but 
under E. S. 1894, § 4401, streets and sidewalks may both be improved. Keith v. Wilson, 
145 Ind. 149 ; Wiles v. Hoss, 114 Ind. 371. 

Ordinance— Sidewalk improvement— Notice.— Under this act the ordinance for the 
improvement is sufficient notice to the lot-owner where further notice is not provided 
for by the ordinance. Shi-um v. Town of Salem, IS App. 115 ; City of Elkhart v. Wick- 
wire, 121 Ind. 331. 

Same.— Where, after the passage of the ordinance requiring the improvement, the 
lot-owners w^ere ordered to grade the sidewalk in front of their lots, that was all the 
notice they w^ere entitled to, and it was immaterial whether such order was oral or 
written. Shrum v. Town of Salem, 13 App. 115. 

Same— Improvement lien — Notice.— In such case the property owner having had 
ample opportunity to be heard before the assessment was made, and before the w^ork 
was done by the municipality, an improvement lien attached and was enforceable. 
Shrum v. Town of Salem, 13 App. 115. 

Sidewalks. — Under the statutes in force in 1875, the board of trustees of an incorpo- 
rated town had the power to compel the grading and building of sidewalks whenever, 
in their opinion, the public convenience required it, and if lot-owners refused to do the 
work, to let a contract for the improvement, pay the cost out of the treasury and collect 
the same from such lot-owners by suit. Powers v. Town of New Haven, 120 Ind. 
185, 190. 

Sidewalk, power to determine width. — Town trustees have the power to determine 
what the width of a sidewalk shall be ; and they are not required to make it of uniform 
width throughout the entire length of the street, nor to make the improvement of such 
sidewalk for the entire length of a uniform width. Town of Marion v. Skillman, 127 
Ind. 130, 140. 

Lot-owner— Improvement by— Town taking* charge of.— The fact that the lot- 
owner had undertaken to do the work himself will not prevent the municipality froin 
taking charge of and completing it, unless it be shown that he had substantially com- 
plied with the requirements of the ordinance. Shrum v. Town of Salem, 13 App. 115. 

Liability of town for acts of property owner.— The acts of a property owner, who 
improves a sidewalk under an ordinance adopted in pursuance of this section, are 
not the acts of the town in such sense as to charge the latter for his negligence ; but, in 
order to charge the corporation, evidence of his negligence must be supplemented by 
evidence that the town authorities were negligent, or that the work directed to be done 
was intrinsically dangerous. Dooley v. Town of Sullivan, 112 Ind. 451. 

Same— Power of trustees— Grade — Sidewalk.— The board of trustees are authorized 
to establish the grades of streets, and to require the owners of lots, in constructing side- 
walks, to make them conform thereto, without any petition on the part of property 
holders ; and an ordinance establishing the grades of certain streets is not void for un- 
certainty, if the grade so estabhshed can be ascertained without difficulty. Burr v. 



789 IMPROVEMENT OF STREETS. § 1251 

Town of Xew Castle, 49 Ind. 322; Martindale v. Palmer, 62 Ind. 411; Taber v. Fergu- 
son, 109 Ind. 227. 

1251, Keqiiisites of sidewalk ordinance, — 2. Such ordinance shall 
specify the height of the grade, if the grade of any such sidewalk is to 
be altered, the width of such pavement, and the time when the same 
shall be done. R. S. 1894, § 4395. 

1252, Owner failing, town makes, — 3. If the owner of such lots 
shall fail or refuse to grade, pave, or plank such sidewalk, as required 
in such ordinance, it shall be the duty of the marshal of such town 
forthwith to let out the grading, paving, or planking of such sidewalk 
to the lowest bidder, first giving ten days' notice, b}^ posting up writ- 
ten notices thereof in three public places in such town for that length 
of time. And when such grading, paving, or planking is completed, 
said marshal shall report the same to said board of trustees, and the 
cost of such work shall be audited and paid out of the treasury of such 
town as other claims against said corporation are audited and paid. 
R. S. 1894, § 4396. 

Writ of prohibition — Discretion. — A writ of prohibition will not lie, at the suit of a 
property holder of an incorporated town, to prevent the execution of a contract let by 
such town to a contractor, to construct a sidewalk along and upon the real property of 
the plaintiff. The town authorities are the sole judges of the necessity" of such walk. 
Corp. of Bluffton v. Silver, 63 Ind. 262; Keith v. Wilson, 145 Ind. 149; Town of Marion 
V. Skillman, 127 Ind. 130. 

Injunction — Jurisdiction. — Such proceedings would only be proper, if at all, in such 
matter, to prevent the making of such contract for want of jurisdiction. The remedy 
in such case is by injunction. Corp. of Bluffton v. Silver, 63 Ind. 262. 

Improvement — Farm land. — The fact that more than twenty acres of the real prop- 
erty is used for farming purposes only is no ground for prohibiting the execution of 
such contract. Corp. of Bluffton v. Silver, 63 Ind. 262. 

Intention of owner — Notice. — The fact that the property holder was, at the time of 
the passage of the ordinance requiring the construction of a sidewalk, about to con- 
struct a sidewalk of a different kind from that required by the ordinance, but of which 
the town is not alleged to have had notice, is not ground for prohibiting the execution 
of a contract entered into between the town and a contractor, Corp. of Bluffton v. Sil- 
ver, 63 Ind. 262. 

The execution of an improvement contract will not be enjoined on the ground that 
the town "has not established grade lines or set grade stakes," etc., nor upon the 
ground that there was no necessity for the improvement. Corp. of Bluffton v. Silver, 
63 Ind. 262. 

Construction by town— Collection of cost.— Where the property owners fail to con- 
struct walks when so ordered, the town may construct the same and collect the expense 
of such owners. Powers v. Town of New Haven, 120 Ind. 185; Town of Auburn v. 
Eldridge, 77 Ind. 126; Allen v. Town of Salem, 10 App. 650; Shrum v. Town of Salem, 
13 App. 115. 

Property owner— Estop])el. — If the owner of property in a town stands by, and, 
without objecting, permits* improvements to be made which benefit his property, he is 
estopped to afterwards deny the authority of the town to make the improvements. 
Powers V. Town of New Haven, 120 Ind. 185; Taber v. Ferguson, 109 Ind. 227; Jenkins 
V. Stetler, 118 Ind. 275. 

Fh-st and subsequent improvements— Discretion.— This and the preceding sections 



§ 1253 TOWNS. 790 

not only apply to the first improvement, but authorize the board of trustees to make 
subsequent improvements. Courts will not interfere with the discretion of the trustees, 
but if their discretion is abused the court may restrain such abuse. Keith v. Wilson, 
145 Ind. 149. 

1253. Cost, how recovered. — 4. Such board of trustees may imme- 
diately, by a suit in any court of competent jurisdiction, in the name 
of such corporation, recover against the owner of such lot the amount 
of the cost of paving or planking and grading such sidewalk; and 
upon execution against the property of said defendant upon such judg- 
ment, the same shall be sold for cash without regard to the valuation 
and appraisement laws of this state. And from the date of the com- 
pletion of such pavement or planking or grading under contract by 
the marshal, the costs of such grading and paving or planking, and 
the damages aforesaid, shall be a lien on such lot, and may be en- 
forced in any court of competent jurisdiction by an action in the name 
of such corporation. R. S. 1894, § 4397. 

Discretion — Injunction. — The discretion of the town trustees in proceedings under 
this act for the construction of sidewalks, in the absence of abuse, will not be controlled 
by the courts. Keith v. Wilson, 145 Ind. 149. 

Cost — Collection— Pleading'. — In an action by a town against a property owner, to 
recover for constructing a sidewalk along his lot, under the provisions of the act of 1859 
(R. S. 1894, § 4394, et seq.), a complaint showing a general and substantial compliance 
with the provisions of said act is sufficient on demurrer ; and the allegation that the 
work was ''duly completed" is a sufficient averment that the walk was completed in ac- 
cordance with the specifications of the ordinance. Town of Auburn v. Eldridge, 77 
Ind. 126, 128. 

Complaint— Exhibit— Ordinance.— In such case, the ordinance to compel owners of 
lots to construct sidewalks is not such an instrument as becomes a part of the complaint 
by the filing of a copy therewith. Town of Auburn v. Eldridge, 77 Ind. 126, 128. 

[Acts 1857, p. 73. In force March 5, 1857.] 

1254. Street improvement.— 46. Whenever two-thirds of all the 
resident owners, in number or in value, of real estate, bounding both 
sides of any street, not less than one square, shall petition to have 
such street or sidewalks connected therewith graded, paved or other- 
wise improved, or the sidewalks thereof built or repaired; or when 
two-thirds of the owners of real estate, in number or in value, on one 
side of such street, shall desire a sidewalk on that side, it shall be the 
duty of such board to levy and cause to be collected by tax upon all 
the owners of all real estate or lots on such street or part of a street, 
or such side of a street, according to the last appraised valuation of 
said real estate, exclusive of any improvement that may be made 
thereon, such sum of money as is necessary for the improvement of 
said street or sidewalk as in said petition requested. At the time of 
making such levy, said board shall fix the nature, extent and specifi- 
cations of the proposed improvement. And any person upon whose 
real estate any such tax is levied may satisfy the same, or any part 
thereof, by labor done and materials furnished for the proposed im- 



791 IMPROVEMENT OF STREETS. § 1255 

provement, under the direction and to the acceptance of said board. 
If any person against whose real estate a tax shall be levied for the 
purpose of building or repairing a sidewalk shall have previously 
built a sidewalk adjoining to the whole of the real estate so taxed, to 
the acceptance of the board, or shall afterward build or repair the 
same within the time prescribed by said board and to their acceptance, 
it shall be a full discharge of such tax for the improvement of such 
sidewalk. R. S. 1894, § 4400. 

Grades— Sidewalk improvements, etc.— The board of trustees of a town are author- 
ized to estabhsh the grades of streets, and to require the owners of lots, in constructing 
sidewalks, to make them conform thereto, without any petition on the part of property 
owners. The case of Town of Covington v. Nelson, 35 Ind. 532, distinguished and com- 
mented upon. Burr v. Totsti of Newcastle, 49 Ind. 322. 

[Acts 1869 S., p. 33. In force April 27, 1869.] 

1255. Street improvement. — 8. Whenever a majority of all the 
resident owners of any lots or parcels of land on any street or alley, 
not less than one square (to be estimated by numbers or by measur- 
ing the front lines of such lots or parcels of land bordering thereon) 
shall petition the board of trustees of such town to grade, pave, gravel 
or macadamize, or for either kind of said improvement, the board of 
trustees may cause the same to be done according to the specifications 
by them to be adopted, by contract given to the best bidder, after 
advertising to receive proposals therefor: Provided, That the said 
board of trustees may order the improvement as aforesaid of any street 
around the public square in such town without the filing of such pe- 
tition; and when the county in which such town is situate owns or 
controls real estate bordering on such public square, it shall be sub- 
ject to the same rules and regulations as to payment for said improve- 
ment as the citizens of said town are subjected. R. S. 1894, § 4401. 

See ante, § 1107. 

Repealed by implication.— This and the two succeeding sections were repealed by 
imphcation by the Barret law, act of 1889, R. S. 1894, § 4288. (See ante, § 1107, et seq.) 
Koons V. Cluggish, 8 App, 232; Cluggish v. Koons, 15 App. 599 ; Allen v. Town of Sa- 
lem, 10 App. 650. See Keith v. Wilson, 145 Ind. 149, in which the supreme court 
seems to recognize this statute as being still in force, although it is not so expressly held. 

Same— Repeal.— This act did not repeal the act of 1859, R. S. 1894, § 4394. Allen v. 
Town of Salem, 10 App. 650; Wiles v. Hoss, 114 Ind. 371; Shrum v. Town of Salem, 
13 App. 115. 

Effect of repeal — Improvement lien— Sufficiency of complaint.— A\liere the theory 
of a complaint for the foreclosure of a lien alleged to have accrued by reason of certain 
improvements was, that the contract was made and work performed under the act of 
1869, R. S. 1894, § 4401, et seq., relating thereto, the complaint was insufficient on de- 
murrer, the contract having been made and work performed under the act of 1889, re- 
lating to the same subject and repealing the former. Koons v. Cluggish, 8 App. 232. 

Improvement under repealed statute— Estoppel.— AYhere a street improvement is 
ordered by a town board under a statute at the time repealed by implication, and the 
contract for said improvement let to a contractor, who, prior to the comiueucomeut of 
the work, consulted an attorney and was informed and believed that all of the proceed- 
ings were regular, and he in good faith entered upon and completed the work accord- 



§ 1255 TOWNS. 792 

ing to the plans and specifications of the board, and the abutting property owner stood 
by and agreed to the work and encouraged it, such property owner will be estopped 
from denying the authority of the town board to make such contract. Cluggish v. 
Koons, 15 App. 599; Taber v. Ferguson, 109 Ind. 227; Ross v. Stackhouse, 114 Ind. 200. 

Street and alley Improvements. — Under this statute, streets and sidewalks may 
both be improved; under § 4394, et seq., R. S. 1894 {ante, § 1250, et seq.), sidewalks 
only can be improved. Keith v. Wilson, 145 Ind. 149; Wiles v. Hoss, 114 Ind. 371. 

The method provided under this act for the improvement of streets and alleys upon 
petition of lot owners, is not in conflict with the more summary method of direct action 
of the trustees under § 4394, et seq., R. S. 1894 (ante, § 1250, et seq.), but is simply an- 
other mode of doing the same work. Keith v. Wilson, 145 Ind. 149 ; Wiles v. Hoss, 
114 Ind. 371. 

Petition— Street improvement— Jurisdiction.— Under this section the board of trust- 
ees of an incorporated town acquire jurisdiction of the improvement of a street within 
the town, only when a majority of all the owners of any lots or parcels of land abutting 
on the street, residing within the town, shall petition the board of trustees for such im- 
provement. Case V. Johnson, 91 Ind. 477, 486; Town of Covington v. Nelson, 35 Ind. 
532; Anthony v. Wilhams, 47 Ind. 565. 

Compliance with statute. — In proceedings of a board of trustees of an incorporated 
town for the improvement of a street, the rule is uniform that there must be a strict 
comphance with the provisions of the statute ; otherwise the proceedings are illegal and 
void. Case v. Johnson, 91 Ind. 477, 492. 

Void proceeding's— Injunction. — Where the work in progress under void proceed- 
ings will be of no benefit, but a damage to the citizens of the town, a resident tax-payer 
of the town may, for himself and others of like interest, enjoin the prosecution of the 
work. Town of Covington v. Nelson, 35 Ind. 532. 

Petition for improvement— Ordinance.— A petition of property owners in an in- 
corporated town for the improvement of "Hope street, between Willow and Schofield 
streets," authorizes an ordinance for the improvement of "that portion of Hope street, 
and sidewalks thereof, lying between Schofield and Willow streets." Wiles v. Hoss, 
114 Ind. 371, 379. 

Public square. — To render a county liable for the improvement of a street around a 
public square, made by order of the board of trustees, it is not necessary that a petition 
for such improvement be filed. Board, etc., v. Shrader, 36 Ind. 87. 

Petitioners — How counted, — Two methods of counting the petitioners are provided 
by this section; one by ascertaining the number of petitioners simply, the other by 
measuring the front hnes of the land or parcels of land bordering upon the part of the 
street to be improved, and thus ascertaining whether or not the petitioners represent a 
majority of the front feet. Indianapolis, etc., R. Co. v. Ross, 47 Ind. 25. 

Notice of letting- of contract — Time — Sunday. — Where an advertisement under this 
section by the board of trustees, for bids for certain proposed street improvements, 
stated that bids would be received up to a certain hour on the following "Saturday, 
September 19," but, the 19th being Sunday, the bids were opened and the contract let 
on the 18th, the notice was reasonable and sufiicient. Case v. Johnson, 70 Ind. 31 ; 
Case V. Fowler, 65 Ind. 29. 

Same. — The question as to whether or not there was a proper advertisement for bids 
is a question of fact which arises "prior to the making of the contract," and this ques- 
tion can not be tried in an action to enforce an assessment. Wiles v. Hoss, 114 Ind. 
371, 380. 

Contract, when sufficient.— A written proposal by the town authorities of the work 
to be done, a written bid to do the proposed work and a written acceptance of the bid 
by the proper authorities, together constitute a sufficient and binding contract. Wiles 
V. Hoss, 114 Ind. 371, 379. 



793 IMPROVEMENT OF STREETS. § 1256 

Contract — Writing*. — The contract between the contractor and the town for an im- 
provement should be in writing. Overshiner v. Jones, 66 Ind. 452; City of IndianapoUs 
V. Imberrj^, 17 Ind. 175; Moberry v. City of Jeffersonville, 38 Ind. 198; Budd v. Kraus, 
79 Ind. 137. 

Parol acceptance of bid. — The parol acceptance, by the board of trustees of the town, 
oi the written bid of the contractor, is not such a contract as the statute requires. An 
acceptance of a bid which contains no agreement by the contractor to perform the work, 
is not a valid contract. Overshiner v. Jones, 66 Ind. 452. 

Contract with town officers — Void. — A contract between the board of trustees and 
any officer of the town, for the construction of any public work for the use of the town, 
is absolutely void. Case v. Johnson, 91 Ind. 477; Benton v. Hamilton, 110 Ind. 294; 
Pratt V. Luther. 45 Ind. 250. See Town of Tipton v. Jones, 77 Ind. 307 ; 1 Dillon 
Munic. Corps. (4th ed.), § 444. 

1256. Cost, kow apportioned. — 9. In all contracts specified in the 
last preceding section, the cost of any such improvement shall be esti- 
mated according to the whole length of such street or alley, or the 
part thereof to be improved, per running foot; and the town shall be 
liable for so much thereof only as is occupied by public grounds of 
said town bordering thereon, and the crossings of the streets and alleys; 
and the owners of lots or parcels of land bordering on such street or 
alley, or the part thereof to be improved, shall be liable to the con- 
tractor for their proportion of the cost of such improvement in the 
ratio of the first [front] line of lots or parcels of land owned by them 
to the whole improved line: Provided, That when the owner of any 
lot or parcel of land shall have made any improvement in front of his 
lot or parcel of land in accordance with the general plan for the im- 
provement of such street or alley, and under the direction of the board 
of trustees,, he shall be entitled to a reasonable allowance therefor upon 
his proportion of the cost of such improvement; which reasonable 
allowance shall be determined by said board of trustees: Provided, 
That every such owner of lot or parcel of land, improved as aforesaid, 
shall be entitled to a credit for his road tax and road-labor tax that 
may accrue for the year in which the improvement is made. R. S. 
1894, § 4402. 

This section held repealed by implication. See preceding section and cases. 

Eailroad — Assessment. — Under this section, where a railroad company occupied and 
used one side of a street of a town as for a right of way, and owned real estate contigu- 
ous to said side, said real estate was liable to assessment for the improvement of said 
street. Indianapolis, etc., R. Co. v. Ross, 47 Ind. 25. See 2 Elliott Railroads, § 7S5- 
790; Elliott Roads and Streets, p. 403. 

Rules of construction— Power to assess and to pay from general fund.— A city or 
town can not compel abutting land-owners to pay for street improvements unless em- 
powered so to do by statute, and when so empowered, the statute will be strictly con- 
strued. The power to make street improvements to be paid for out of the city or town 
treasury is liberally construed. Town of Marion v. Skillman, 127 Ind. 131. 

Repairing' — Assessment. — Power to assess abutting property owners with the cost of 
grading and paving a street does not of itself authorize a city or town to assess such 
owners with the cost of repairing such street. Town of Marion v. Skillman, 127 Ind. 
131. 



§ 1257 TOWNS. 794 

1257. Cost, how collected. — 10. When any such contract shall be 
made, or shall have been heretofore made, and shall have been ful- 
filled or in progress of fulfillment, the board of trustees shall have 
power to cause estimates to be made, from time to time, of the amount 
of work done by the contractor, and to require such amount to be paid 
to him, deducting a reasonable percentage to secure the completion of 
the contract, until the whole shall be finished, and to prescribe the 
time in which the whole shall be completed; and such estimate shall 
be a lien upon the ground upon which they are assessed, in favor of 
said contractor. In case any of the owners of lots or parcels of land 
on which such assessments have been made, shall fail or refuse, for 
the space of ten days after the date of the estimate, to pay the amount 
thereof due by such person to such contractor, such contractor may 
immediately, by a suit in any court of competent jurisdiction, recover 
against such owners of lots or parcels of land the amount of such esti- 
mate; and upon execution against the property of said defendant upon 
such judgment, the same shall be sold for cash without regard to 
valuation or appraisement laws of this state: Provided, That in such 
suits on estimates, no question of fact shall be tried which may arise 
prior to the making of the contract for said improvement under the 
order of the board of trustees. When any contract for the improve- 
ment of any street or alley has been heretofore made, and wholly or 
partially completed, and the said improvements wholly or partially 
unpaid for, such contractor may collect the same under the provisions 
of this act, provided the requirements of this act have been followed 
by the board of trustees in letting such contract. R. S. 1894, § 4403. 

This and the two preceding sections held repealed by implication. See cases under 
preceding sections. 

Complaint — Sufficiency. — A complaint by the contractor against a property owner 
to recover an assessment must show, except where the street improvement is around a 
public square, that the improvement was asked for by a petition signed by a majority of 
the property owners; that the specifications were prepared and showed the kind, 
quantity, and location of the work to be done ; that proposals to do the work were ad- 
vertised for ; that a contract to do the work according to specifications was entered 
into ; that the work was done according to the contract ; that the amount of the con- 
tract price was estimated to the different tracts of ground bordering on the street im- 
proved ; that the board of trustees required the owners to pay the amount so estimated ; 
and that the owner complained of failed or refused to pay the same within ten days 
after the date of such estimate. Anthony v. Williams, 47 Ind. 565; Overshiner v. 
Jones, 66 Ind. 452; Case v. Johnson, 91 Ind. 477. 

Complaint— Necessary averments.— In an action under this statute to recover the 
expense of improving a street in a town, the complaint must show that every step re- 
quired by the statute regulating such improvements has been taken. Anthony v. Wil- 
liams, 47 Ind. 565; Moore v. Cline, 61 Ind. 113; Overshiner v. Jones, 66 Ind. 452; 
Eoss V. Stackhouse, 114 Ind. 200, 202. 

The complaint to be sufficient must allege facts showing that the town had power to 
bind the defendant, and had legally exercised it. Anthony v. Cooley, 61 Ind. 323. 

The complaint should aver that the contract is in writing, and when it does not do so, 
and no copy of the contract is exhibited with the complaint, the same is bad. Over- 
shiner V. Jones, 66 Ind. 452. 



795 IMPROVEMENT OF STREETS. § 1257 

Assessment, complaint to enforce. — In an action by a contractor against the owner 
of a town lot to enforce an assessment thereon for street improvement, the complaint 
must aver the cost of the improvement, the length of the improved line upon the street, 
and the length of the front line of the lot; otherwise the complaint is insufficient on 
demurrer ; and exhibits attached to such complaint, other than the copy of the assess- 
ment, can not be considered in determining its sufficiency. Mendenhall v. Clugish, 84 
Ind. 94, 95. 

Assessment J collection of— Estoppel.— A question as to whether or not there was a 
proper advertisement for bids is a question of fact which arose "prior to the making of 
the contract" for the improvement of the street, and, under §4403, R. S. 1894, is not 
triable in an action to enforce an assessment. Wiles v. Hoss, 114 Ind, 371, 380. 

Complaint — Exhibit — Contract. — A complaint by a contractor against a property 
owner, to recover an assessment made against the latter by the trustees of a town for 
grading- the street whereon his property abuts, must be founded upon a written contract 
and must set forth the original contract or a copy thereof. A copy of the contractor's 
bond is not a sufficient substitute. Budd v. Kraus, 79 Ind. 137, 139. 

Same — Exhibits. — Exhibits attached to such complaint, consisting of copies of the 
petition for such improvement, the record of the action of such board thereon, and of 
other documents connected therewith, can not be looked to in determining the suffi- 
ciency of the complaint. Moore v. Cline, 61 Ind. 113. 

Complaint — Demnrrer. — The sufficiency of a complaint by a contractor to recover for 
grading and graveling a street in an incorporated town, in reference to matters occur- 
ring prior to the making of the contract, may be tested by demurrer. Anthony v. Wil- 
liams, 47 Ind. 565. 

Contract — Mandamns. — Complaint against a town in two paragraphs, each showing 
a contract between the defendant by its trustees and the plaintiff for the improvement 
of a certain street at the expense of the adjacent property owners, the town to pay for 
street crossings, but the plaintiff to receive nothing until laborers were paid. The 
gravamen of the first paragraph was, that the town had failed to make necessary orders 
for the sale of property, and so had deprived the plaintiff of a remedy against the own- 
ers ; and the gravamen of the second paragraph was, that the town, without cause, or- 
dered the plaintiff, and with threats of violence compelled him, to stop the work, depriving 
him of the benefit of the contract. The first paragraph was insufficient, and the second, if 
sufficient, was good for nominal damages only. If the town were compelled to make 
compensation for the work done, it could not re-imburse itself by assessment, and it, 
therefore, was not liable on account of the delinquencies alleged in the first paragraph. 
The plaintiff's remedy was by mandamus. The complaint was insufficient for work 
done on crossings, for want of an averment that the laborers had been paid. The second 
paragraph did not show that the contract was valuable or valid ; if not valid, the esti- 
mates ooukl not have be^n enforced ; and the plaintiff was not shown to have been in- 
jured by the interruption. Town of Tipton v. Jones, 77 Ind. 307, 312. 

Assig'nment of contract — Trustee. — An answer, in such case, that the plaintiff had 
in writing assigned his contract, and all assessments and estimates made and to be 
made, to another person, who still held it, was good as against an action on the con- 
tract, but not as against the tort alleged in the second paragraph of complaint, if actual 
damage were shown. It was no objection to such assignment, as between the parties 
thereto, that the assignee was a trustee of the town, though he could not make a profit 
of it. Town of Tipton v. Jones, 77 Ind. 307, 316. 

Public square— Liability of county— Appeal.— The contractor for the improvement 
of a street bordering on a public s\][uare in a town, upon receiving an estimate for work 
done, may present his claim therefor in the form of an account against the county, to 
the board of commissionei-s who have the power to allow it; and if payment is refused, 
he may either appeal from the action of the board to the circuit court, or bring an 
action against the county. Board, etc., v. Shrader, 36 Ind. 87. 



§ 1258 TOWNS. 796 

Same — Pleading* — Evidence. — It is not necessary that the account so presented 
should state that all the steps required by law to make a valid assessment were taken, 
but evidence thereof can be introduced on the trial on appeal. Board, etc., v. Shrader, 
36 Ind. 87. 

ARTICLE 5.— OPENINGS AND VACATIONS. 

SEC. SEC, 

1258. Power over streets, bridges, etc. 1269. Penalty. 

1259. Opening streets. 1270. Imperfect plat. 

1260. Duty of commissioners. 1271. Vacation. 

1261. Tender of damages. 1272. Proceedings concerning vacation. 

1262. Assessment — Collection. 1273. Title on vacation. 

1263. Action on report — Appeal. 1274. No vacation, unless owners consent. 

1264. Infants and insane. 1275, Additions, how vacated. 

1265. Opening and improving streets. 1276, Change of name. 

1266. Record of plats. 1277, Vacation of unused public square. 

1267. Donation by plat. 1278. Public square — School. 

1268. Plat, how acknowledged. 1279. Action by county board. 

[Acts 1869 S,, p. 33. In force April 27, 1869.] 

1258. Power oyer streets, bridges, etc. — 1. The board of trustees of 
incorporated towns in this state shall have exclusive power over the 
streets, alleys, highways and bridges within the corporate limits of 
such town, and may prescribe the height and manner of construction 
of ail such bridges, and lay out, survey, and open new streets and 
alleys, and straighten, narrow, widen, grade and gravel, and other- 
wise alter and improve those already laid out, or that may be here- 
after laid out; and make repairs thereto as hereinafter provided. They 
may cause buildings, structures, and other things in the way of any 
streets or other public improvement to be taken down, removed and 
appropriated, upon the payment of damages as hereinafter provided. 
And no person residing in said town shall be compelled to work on 
any road or highway without the corporate limits of said town. And 
the board of trustees may exercise all the powers given to township 
trustees in regard to highways in their respective towns; and the mar- 
shal, under the direction of the board of trustees, may perform all the 
duties and exercise all the powers of road supervisors in reference to a 
road labor tax, not to exceed two days in each year, by each person 
liable to work on roads in townships, and shall be governed by the 
same rules and regulations in reference to the collections and enforce- 
ment of the same, and any person so liable to work may be discharged 
therefrom on the payment of one dollar and fifty cents per diem: Pro- 
vided, That the board of trustees may, by general ordinance, prescribe 
the time within which and the manner in which such labor shall be 
performed. R. S. 1894, § 4404. 

See Cities and Towns, ante, § 1107, et seq., and ante, §§ 1195, 1250; also Cities, § 218 and 
notes. 

Power over streets — Eepairs — Liability. — An incorporated town has exclusive power 
over its streets, and is under the duty to use ordinary care to keep them in a reasona- 
bly safe condition for travelers thereon, exercising ordinary care, and failure to exer- 



797 • OPENINGS AND VACATIONS. § 1258 

cise such care will subject the town to a liability for damages for injuries caused by 
such failure. Town of AVorthington v. Morgan, 17 App. 603; Keith v. Wilson, 145 Ind. 
149 ; Dooley v. Town of Sullivan, 112 Ind. 451 ; Town of Gosport v. Evans, 112 Ind. 133 ; 
Town of Spiceland v. Alier, 98 Ind. 467 ; Town of Eushville v. Poe, 85 Ind. 83 ; Town of 
Salem v. Goller, 76 Ind. 291 ; Town of Knightstown v. Musgrove, 116 Ind. 121 ; Town 
of Marion v. Skillman, 127 Ind. 130; Alexander v. Town of New Castle, 115 Ind. 51; 
Town of Albion v. Hetrick, 90 Ind. 545; Town of Centerville v. Woods, 57 Ind. 192; 
Town of Elkhart v. Ritter, 66 Ind. 136; Pittsburgh, etc., R. Co. v. Town of Crown 
Point, 146 Ind. 421 ; Town of Kentland v. Hagen, 17 App. 1 ; Scudder v. Hinshaw, 134 
Ind. 56; Town of Rosedale v. Ferguson, 3 App. 596; Wickwire v. Town of xingola, 4 
App. 253; Town of Fowler v. F. C. Austin Mfg. Co., 5 App. 489; Town of Monticello v. 
Kennard, 7 App. 135; Sparling v. Dwenger, 60 Ind. 72; State v. Mainey, 65 Ind. 404; 
Snyder V. Town of Rockport, 6 Ind. 237; Town of Nappanee v. Ruckman, 7 App. 361; 
Town of Salem v. Walker, 16 App. 687 ; Drew v. Town of Geneva, 150 Ind. 662 ; Town 
of Williamsport v. Lisk, Ind. App. Ct., Jan. 11, 1899; Elliott Roads and Streets, p. 327, 
et seq. 

Streets and turnpikes— When reasonably safe for travel— How determined.— 
AMiether a street or turnpike is reasonably safe for travel is a question to be determined 
by the surrounding circumstances, the nature and surface of the soil over which the 
road is made, the natural obstructions and obstacles to be overcome, its situation and 
locality, and the kind and amount of public travel which pass over it. Sale v. Aurora, 
etc., Co., 147 Ind. 327; 2 Dillon Munic. Corp., §§ 1006, 1008, 1016, 1019. 

Use of streets — Easement — Expansive. — The easement in a street is not limited to 
the particular methods of use in vogue when the easement was acquired, but included 
all new and improved methods, the utility and general convenience of which may after- 
ward be discovered and developed in aid of the general purpose for which highways are 
designed. It is not material that these new and improved methods of use were not con- 
templated by the owners of the land when the easement was acquired, and are more 
onerous to him than those then in use. Magee v. Overshiner, 150 Ind. 127 ; Elliott 
Roads and Streets, p. 529. 

By virtue of the above section and ante, §§ 1195, 1250, 1251, 1252 and 1253 (R. S. 1894, 
§§4352, 4394, 4395, 4396, 4397), the board of trustees of an incorporated town is 
vested with plenary powers and exclusive jurisdiction over the streets and the im- 
provement and repair thereof. Drew v. Town of Geneva, 150 Ind. 662; Keith v. 
Wilson, 145 Ind. 149. 

A town having passed an ordinance for the improvement of a street, may maintam an 
action for injunction in the name of the corporation against an abutting owner who in- 
sists upon making permanent improvements in respect to the streets, in defiance of the 
ordinance of the board of trustees. Drew v. Town of Geneva, 150 Ind. 662. 

The exclusive power conferred by this section is inconsistent with the exercise of any 
power over the streets by the county board of commissioners. The act of 1891 (R. S. 
1894, § 5175), does not take away from the town board and confer upon the county 
board the control over the streets in a town to any degree, and an order of the county 
board requiring a railroad company to keep a flagman at a street crossing in a town is 
of no effect. State v. Chicago, etc., R. Co., 151 Ind. 474. 

The legislature in granting to cities and towns exclusive authority over the streets did 
not abridge its power to define and punish misdemeanors, nor did the legislature thereby 
repeal or modify the statutes then in force, making acts relating to streets in towns or 
cities, crimes. The wrongful obstruction of a public street or sidewalk in a city or town 
is a misdemeanor under the criminal laws of the state, and a city or town can not en- 
act an ordinance prescribing a penalty for any one who obstructs such street. City of 
Indianapolis v. Higgins, 141 IncL 1. 

Under a prior incorporating act, the president and trustees of an incorporated town 
did not have such possession of the streets of the town as to enable them to maintain 



§ 1258 TOWNS. ' 798 

an Rctioii of trespRfiS quare clausum /regit for an injun^ thereto. Conner v. President, 
etc., 1 Blackf. 88. 

Eminent domain — Lot-owner's rig'ht. — The owner of a lot abutting upon the street 
of a town has a property-riglit in the street as it exists, which can not be appropriated 
and taken from him against liis consent without compensation, but in the exercise of 
the power of eminent domain it may be taken for a pubhc use by due process of law. 
State V. Berdetta, 73 Ind. 185, 189; Eoss v. Thompson, 78 Ind. 90, 94; Cummins v. City 
of Seymour, 79 Ind. 491, 498; City of Logansport v. Shirk, 88 Ind. 563, 571; City of In- 
dianapolis V. Kingsbury, 101 Ind. 200, 211 ; Town of Rensselaer v. Leopold, 106 Ind. 
29, 31; Terre Haute, etc., R. Co. v. Bissell, 108 Ind. 113, 116; Indiana, etc., R. Co. v. 
Eberle, 110 Ind. 542, 546; City of Lafayette v. Nagle, 113 Ind. 425, 427; Burkam v. 
Ohio, etc., R. Co., 122 Ind. 344, 345; Kincaid v. Indianapohs, etc., Co., 124 Ind. 577, 
579; Adams V. Ohio, etc., Co., 131 Ind. 375, 378; Dantzer v. Indianapolis, etc., Co., 141 
Ind. 604; Lostutter v. City of Aurora, 126 Ind. 436; Egbert v. Lake Shore, etc., R. Co., 
6 App. 350; Haslett v. New Albany, etc., R. Co., 7 App. 603; Elliott Roads and Streets, 
pp. 142, 154. 

Discretion of municipal body. — Unless it is apparent at first blush that the proposed 
use is not public, courts can not interfere with the discretion confided in a municipal 
body in doing what the statute expressly authorizes. Town of Rensselaer v. Leopold, 
106 ind. 29. 

Exclusive privileg'es. — A municipal corporation can not grant to a private corpora- 
tion the exclusive privilege of using its streets for the purpose of supplying the corpora- 
tion or its citizens with light, water, fuel or the like. Citizens', etc., Co. v. Town of 
Elwood, 114 Ind. 332 ; City of Rushville v. Rushville, etc., Co., 132 Ind. 575 ; Indianap- 
ohs, etc., Co. V. Citizens', etc., R. Co., 127 Ind. 369; Crowder v. Town of Sullivan, 128 
Ind. 486; Elliott Roads and Streets, pp. 332, 566-569; 1 Beach Pub. Corp., § 622. 

Defects and obstructions — Liability for. — A municipal corporation is required to ex- 
ercise vigilance in keeping its streets and sidewalks in a reasonably safe condition for 
travel by night as well as by day ; but, that a pavement has become uneven, or that 
bricks therein may be displaced by the action of the elements, does not necessarily in- 
volve such municipality in liability if the defect can be readily discovered and easily 
avoided by persons exercising due care, or if the defect be of such a nature as not of 
itself to be dangerous to persons so using the walk. Town of Gosport v. Evans, 112 
Ind. 133. 

Same — Injunction. — In an action to enjoin tlie obstruction of a public highway within 
the limits of an incorporated town and under the jurisdiction and control of such cor- 
poration, brought by a plaintiff who predicates his right to such relief on the ground 
that he is the owner of certain lots fronting upon the highway obstructed by a third 
person, such corporation is not a necessary party plaintiff. Debolt v. Carter, 31 Ind. 
355. 

Power to assess— Improvement at ])ublic expense—Rules of construction.— The 
city or town can not compel abutting land owners to pay for street improvements un- 
less empowered so to do by statute ; and when so empowered, the statute will be 
strictly construed. The power to make street improvements, to be paid for out of the 
city or tovvTi treasury, is liberally construed. Town of Marion v. Skillman, 127 Ind. 130; 
Eliiott Roads and Streets, pp. 369, 370, 374. 

Repairing'. — Power to assess abutting lot-owners with the cost of grading and paving 
a street does not, of itself, authorize a city or town to assess such owners with the cost 
of repairing such street. Town of Marion v. Skillman, 127 Ind. 130. 

Street improvement— Injunction. — Before the courts will, at the suit of an abutting 
land-owner, enjoin municipal authorities from making street improvements, at the 
public expense at least, it must be shown that there has been a clear invasion of the 
rights of such complaining land-owner, and that unless the injunction be granted, the 



799 OPENINGS AND VACATIONS. § 1258 

abutting land-owner will suffer irreparable injury. Town of Marion v. Skillman, 127 
Ind. 130. 

Mode of improyemeiit— Mandamus— Disci*etion.— The board of trustees have ex- 
clusive power over the streets and alleys of the town, with power to improve the same, 
and the manner of improvement being discretionary with the board, their discretion as 
to the mode of improvement can not be controlled by mandamus. State v. Miles, 138 
Ind. 692. 

Improvemeut of streets— Neg^lig-ence or iinskillfulness—Dainag-es— Abutting- pro- 
prietors.— AVhere the improvement of the street is carefully and skillfully made, the 
town can not be held liable to any lot-owner for merely consequential damages to him 
or his lot ; but where the work is negligently or unskillf uUy done, the town will be 
liable in damages to the abutting lot-owner for such injuries to his lot and premises as 
result directly from negligence or unskillfulness in the improvement of the street. Town 
of Princeton v. Gieske, 93 Ind. 102; Platter v. City of Seymour, 86 Ind. 323; City of 
Evansville v. Decker, 84 Ind. 325; Elhott Eoads and Streets, pp. 204-206, 336. 

AVhere an incorporated town itself undertakes the improvement of its streets, and is 
sued by an abutting proprietor to recover damages resulting from its negligence in do- 
ing the work, it is no defense to the action that the improvement of the streets en- 
hanced the market value of the plaintiff's property ; and, therefore, evidence offered of 
such enhanced market value was incompetent and properly excluded. Town of Mar- 
tinsville V. Shirley, 84 Ind. 546. 

Assessment of damag'es— Opinion of witnesses. — In the assessment of the plaintiff's 
damages to the property of an abutting owner in the improvement of a street the jury 
is not bound or concluded by the opinion or estimates of witnesses as to the amount of 
damages. Town of Princeton v. Gieske, 93 Ind. 102. 

Estoppel of property owner, — If the owner of property in a town stands by, and, 
without objecting, permits improvements to be made which benefit his property, he is 
estopped to afterward deny the authority of the town to make the improvements. 
Powers V. Town of New Haven, 120 Ind. 185; Taber v. Ferguson, 109 Ind. 227; Ross v. 
Stackhouse, 114 Ind. 200; City of Evansville v. Pfisterer, 34 Ind. 36 ; Jenkins v. Stettler, 
118 Ind. 275; Johnson v. Allen, 62 Ind. 57 ; Elliott Roads and Streets, pp. 419, 423. 

Estoppel — Standing' by — Silence. — Mere silence of the property owner having 
knowledge that the work in grading a street is being done, and his failure to object and 
to prevent it by injunction, will not estop him to contest an assessment against his 
property made without any contract. Budd v. Kraus, 79 Ind. 137, 140. 

Acceptance of work. — In such case, the contractor can not be heard to allege that 
the property owner received and accepted the grade, which can be done only by the 
trustees of the town. Budd v. Kraus, 79 Ind. 137, 141. 

Power to narrow street. — The board of trustees of an incorporated town in this 
state have, upon the conditions imposed by the statutes, power to narrow a street, and 
property appropriated in making such improvement is for a public use. Town of Rens- 
selaer V. Leopold, 106 Ind. 29, 34. 

Narrowing" sidewalk. — Town trustees have power to determine the width of a side- 
walk ; and they are not required to make it of uniform width throughout the entire 
length of the street, nor to make the improvement of such sidewalk for the entire 
length of uniform width. Town of Marion v. Skillman, 127 Ind. 130. 

Power to widen street.— Under the act of April 27, 1869 (§§ 4401, 4405, R. S. 1894), 
an incorporated town has no authority to order, in the same proceeding, a street to be 
widened, graded and graveled, as the proceeding to widen is distinct from a proceeding 
to grade and gravel, and these proceedings can not be blended ; and an assessment 
made by virtue of such order is void. IMendenhall v. Clugish, 84 Ind. 94, 98. 

Street— Consent of members to cliang*e.— Consent of members of a town board to a 
change in a street, unless given while assembled as a board, can not be regarded as an 
act of the corporation. Blue v. Briggs, 12 App. 105. 



§ 1258 TOWNS. 800 

Grade and chang'e of grade of street.— An incorporated town is not liable for con- 
sequential damages arising by reason of the changing of the grade of its streets. After 
the grade has been established and improvements made with reference thereto, the 
town has power to change the grade without payment of damages. Baker v. Town of 
Shoals, 6 App. 319; Snyder v. President, etc., 6 Ind. 237; City of Wabash v. Alber, 88 
Ind. 428; Burr v. Town of New Castle, 49 Ind. 322; Elliott Eoads and Streets, p. 336. 

The board of trustees may change the grade of a sidewalk at any time before the 
work on an improvement is completed, in such manner as in their judgment would 
make the walk beneficial to the public. State v. Miles, 138 Ind. 692. 

Invalid order fixing* grade — Improvement— Liability of contractor.— Where an 
order establishing the grade of a street in a town is passed by the board of trustees 
without an emergency clause, and no notice of its adoption is given, a lot owner whose 
property is injured by the improvement of the street may maintain an action against 
the contract or for the damages. Meyer v. Fromm, 108 Ind. 208. 

An ordinance establishing the grades of certain streets in a town is not void for un- 
certainty, if the grades so established can be ascertained without difficulty. Burr v. 
Town of New Castle, 49 Ind. 322. 

Town g-rade— Chang'e by city. — An incorporated town having established a grade of 
a street and improved it accordingly, afterwards became a city and changed the grade, 
much to the injury of an abutting lot. The proviso to E. S. 1894, § 3508, did not re- 
quire the city to pay damages. City of Wabash v. Alber, 88 Ind. 428; City of Hunting- 
ton V. Griffith, 142 Ind. 280. 

Neg"lig*ence— Specific act of neg'lig*ence— Complaint.— A complaint against the town 
for a personal injury suffered by reason of a fall in the street must show that. the injury 
was caused by some specific act of negligence or omission of duty on the part of the 
town ; and a charge that the town, while grading a street, caused the digging of a hole 
ten inches deep and twelve inches in diameter which it negligently permitted to remain 
in the street for ten days uncovered and unguarded, and that, while walking along the 
street the plaintiff, without negligence on her part, stepped into the hole and was 
thrown down and injured, is insufficient. Town of Eushville v. Poe, 85 Ind. 83. 

Notice— Active and constructive— Safety of streets.— A municipal corporation is 
not an insurer of the safety of its streets, but it is bound to exercise reasonable care and 
diligence to keep them in a reasonably safe condition. The corporation is entitled to 
notice of the defect, and to a reasonable time in which to remove it, where it has been 
caused by some third person. The notice may be either actual or constructive. When- 
ever the defect has existed such length of time as that, when its character and location 
and the other attendant circumstances are considered, the corporation, by the exercise 
of reasonable diligence, ought to have discovered and removed the defect, then it will 
be held liable for damages occasioned thereby to one himself without fault. Town of 
Monticello v. Kennard, 7 App, 135; Higert v. City of Greencastle, 43 Ind. 574; City of 
Eichmond v. Mulholland, 116 Ind. 173 ; City of Franklin v. Harter, 127 Ind. 446 
Turner v. City of Indianapolis, 96 Ind. 51 ; City of Huntington v. Breen, 77 Ind. 29 
Town of Spiceland v. AHer, 98 Ind. 467; City of Evansville v, Wilter, 86 Ind. 414 
Town of Eosedale v. Ferguson, 8 App. 596; City of Aurora v. Bitner, 100 Ind. 396; City 
of Ft. Wayne v. Patterson, 3 App. 35; City of Huntingburg v. First, Ind. App. Ct., 
March 10, 1899. 

Same— When notice need not be shown.— Where the defect in the street which 
caused the injury is attributable to the act of the corporation itself, it is not neces- 
sary to prove notice. In making improvements in the street, a municipal corpora- 
tion is bound to take notice of such defects as ordinary skill and prudence will discover. 
City of Ft. Wayne v. Patterson, 3 App. 34; Board, etc., v. Bacon, 96 Ind. 31; City of 
Ft. Wayne v. Coombs, 107 Ind. 75; City of Warsaw v. Dunlap, 112 Ind. 576; Board, 
etc., V. Pearson, 120 Ind. 426. 



801 OPENINGS AND VACATIONS. § 1258 

Constructive notice— Leug'th of time— Question of fact.— What length of time will 
be sufficient to charge the city or town with constructive notice is in most cases a ques- 
tion of fact, for the jury. City of Aurora v. Bitner, 100 Ind. 396; City of Ft. Wayne v. 
Patterson, 3 App. 34. 

Excavation in street — Complaint— Notice. — In an action against a town, to recover 
damages for an injury received by the plaintiff by a fall into an excavation in a side- 
walk in a public street of said town, the complaint alleged that the defendant had 
" negligently permitted such excavation to be made;" that it was *'so situated as to 
prevent pedestrians from passing along the said sidewalk * * without turning into" 
the street; that said excavation was upon a street " most used by the public, * * and 
was by the defendant so negligently and carelessly allowed to remain several days 
prior to said accident, without any proper or sufficient guards, lights, notices or railings 
* * ; that, at the date of said accident, the plaintiff resided in said town, and was 
engaged in daily labor, by which she gained her support ; * * " that in the evening, 
about dark, she attempted to pass along said street, when, ''without fault or negligence 
on her part she fell into said excavation and was thereby greatly injured, both exter- 
nally and internally, disabled to labor, put to great expense," etc. On demurrer the 
complaint is sufficient; also, the clear inference from the facts alleged is that the 
defendant had notice of the excavation, and of its condition, but that no such notice to 
the plaintiff can be inferred. Town of Elkhart v. Ritter, 66 Ind. 136. 

Notice of defect— Complaint. — When in a complaint it is averred "that the defend- 
ant knew of, and had notice of, the identical hole and defective place and sidewalk where 
plaintiff was injured, as aforesaid, a sufficient length of time before the injury occurred to 
have repaired the defective place before the 2d day of April, 1891," the time of the 
occurrence, is a sufficient averment of notice to the town of the alleged defect. Town 
of Nappanee v. Ruckman, 7 App. 361. 

Notice — Complaint. — A complaint against an incorporated town for an injury result- 
ing from a defective sidewalk, which fails to aver notice by the corporation of the 
defect, or facts by reason of which the law will impute notice, or from which it may be 
reasonably inferred, is bad on demurrer. Town of Spiceland v. Alier, 98 Ind. 467; 
Turner v. City of Indianapolis, 96 Ind. 51. 

Notice to trustee — Notice to town. — Notice to a member of the board of trustees of a 
town of the defective condition of a street is notice to the town. Jewell v. Town of 
Sullivan, 5 App. 188; City of Logansport v. Justice, 74 Ind. 378; City of Columbus v. 
Strassner, 124 Ind. 482. 

Obstruction of street— Notice.— Where a pile of brush two feet high, projecting eight 
fe>et into one of the principal streets of a town, near the business portion thereof, re- 
mained in such position for three days, the corporation was chargeable with notice of 
such obstruction, and with liability for any damages resulting from such negligence, 
where the injured person is free from contributory negligence. Town of Monticello v. 
Kennard, 7 App. 135, 140. 

Neg-lig-ence— Damag-es- Proximate cause.— Where one, while passing along the 
street of a town in charge of a prisoner, is seized by the latter in an attempt to escape 
and thrown into a pit negligently permitted by the town authorities to remain in the 
street, whereby he suffers injury, the town is not liable, its negligence not being the 
proximate cause of the injury. Alexander v. Town of New Castle, 115 Ind. 51, 53. 

Obstruction of hig-hway— Damag-es to abutting* owner.— The owner of real estate 
abutting on a public highway can not maintain an action for the obstruction of such 
highway, unless some special injury, one not common to all who use the liighway, has 
been sustained, where such abutting owner is not the owner in fee-simple of any part 
of the highway. Pittsburg, etc., R. Co. v. Noftsger, 148 Ind. 101. 

Excavations under sidewalk— Liability of abutting: owner.— An excavation made 

CiT. AND To.— 51 



§ 1258 TOWNS. 802 

in a street or under the sidewalk for private purposes is a nuisance per se, if made with- 
out the consent of the municipahty ; but if made with such consent, it does not become 
a nuisance until it renders the street actually dangerous. The author is bound only to 
exercise ordinary care and dihgence to maintain the same in a safe condition,, and is 
answerable only for his negligence. Wickwire v. Town of Angola, 4 App. 253 ; City of 
Elkhart v. Wickwire, 87 Ind. 77; McNaughton v. City of Elkhart, 85 Ind. 384; Elliott 
Eoads and Streets, p. 482. 

Although the excavation was made by a prior owner and a remote grantor of the de- 
fendants, by and with the consent of the town, the excavation is presumptively a ben- 
eficial appurtenance to the realty, and the defendants were liable for a failure to keep 
it in a safe condition, if they maintained and used it. AVickwire v. Town of Angola, 
4 App. 253. 

ImproYement of sidewalk by lot-owner — Excavation.— To a complaint against a 
town to recover for an injury sustained by falling, in the night time, into an excavation 
in a sidewalk, an answer that the excavation was made by the owner of the abutting 
lot in pursuance of an ordinance requiring him to improve the sidewalk, and that he 
had, when the work was left on the night in question, placed proper danger signals at 
the excavation, which the plaintiff, without any fault on the part of the lot-owner, had 
disregarded, is good. Dooley v. Town of Sullivan, 112 Ind. 451. 

Liability of town for acts of property owner.— The acts of the property owner, Avho 
improves a sidewalk under an ordinance, are not the acts of the town in such sense as 
to charge the latter for his negligence; but, in order to charge the corporation, evidence 
of his negligence must be supplemented by evidence that the town authorities were neg- 
ligent, or that the work directed to be done was intrinsically dangerous. Dooley v. 
Town of Sullivan, 112 Ind. 451. 

Dang'er sig'nals —Watch. — Only ordinary care is required of a municipal corporation, 
its agents and contractors, and it is sufficient to show that proper signals or guards were 
placed about an excavation on quitting work, unless there are circumstances pecuhar to 
the particular case making it necessary that a watch be kept, and if such signals or 
guards are removed during the night by a wrong-doer tliere is no liability against the 
town. Dooley v. Town of Sullivan, 112 Ind. 451. 

Defective covering- of coal hole in sidewalk— Neg'lig-ence—Damag'es.— In order to 
charge the owner of the fee in a street in front of his premises with neghgence, because 
of the defective fastening of the cover of a coal hole in the sidewalk, it must appear 
that he placed the cover in the sidewalk, or, if made and placed there by others with- 
out his authority or acquiescence, that he assumed control thereover. Gaston v. 
Bailey, 14 App. 581. 

Neither the city nor the owner of the fee in a street guarantees the absolute safety of 
the sidewalk, and negligence is essential to the hability of the owner for an injury re- 
ceived upon such walk. Gaston v. Bailey, 14 App. 581. 

Permitting' objects in street calculated to frig'hten horses— Damag'es.— Towns and 
cities, in the absence of contributors^ n'egligence, are liable for injuries resulting from 
the fright of horses, of ordinary gentleness, at objects naturally calculated to frighten 
them, and which the corporation has negligently placed, or permitted to be placed, 
and to remain upon the street. Town of Eushville v. Adams, 107 Ind. 475. See Cleve- 
land, etc., E. Co. V. Wynant, 114 Ind. 525, 531 ; Town of Fowler v. Linquist, 138 Ind. 566. 

Contributory neg-lig-ence- Knowledg'e of obstruction— Assumption of risk.— If a 
person knows there is an obstruction in a street, and he attempts to pass the place, 
where, in consequence of the darkness of the night, or other hindering cause, he can 
not see the obstruction and runs upon it, he takes the risk upon himself, and if he sus- 
tains injury can not recover. President, etc., v. Dusouchett, 2 Ind. 586; Bruker v. 
Town of Covington, 69 Ind. 33; Eiest v. City of Goshen, 42 Ind. 339; Louisville, etc., E. 
Co. V. Schmidt, 81 Ind. 264; City of Indianapohs v. Cook, 99 Ind. 10; Evansville, etc.. 



803 OPENINGS AND VACATIONS. § 1258 

E. Co. V. Griffin, 100 Ind. 221; Town of Gosport v. Evans, 112 Ind. 133; Morrison v. 
Board, etc., 110 Ind. 431 ; Evansville, etc., R. Co. v. Crist, 116 Ind. 446; Town of Bos- 
well v.WakleT, 149 Ind. 64 ; Rogers v. City of Blooraington, Ind. App. Ct., Dec. 16, 1898. 

If the danger is so near and so great that a prudent man, knowing of its existence, 
would not assume the hazard of encountering it, then it w^ill constitute contributory 
neghgence for the traveler to voluntarily encounter the same. Evansville, etc., R. Co. 
V. Crist, 116 Ind. 446; Town of Gosport v. Evans, 112 Ind. 133; City of Richmond v. 
Mulholland, 116 Ind. 173; Lake Shore, etc., R. Co. v. Pinchin, 112 Ind. 592. 

Contributory iieg'lig'ence— Kuowledg'e of obstruction. — Where a party knows of the 
existence of an open cellarway in a sidewalk, and attempts to pass the place in the 
night, he will be considered as taking the risk on himself, even if at the time he had 
forgotten the existence of the obstruction, and if he receives injuries from falling into 
8uch cellarway he is guilty of contributory negligence and can not recover damages. 
Bruker v. Town of Covington, 69 Ind. 33. 

Where plaintiff passed over a sidewalk that was out of repair three or four times a 
week for several w-eeks prior to his injury, and had actual knowledge that the sidew^alk 
was old and boards loose and walk dangerous, and was walking over it in the dark with 
liis hands in his pockets, and could have gone home by some other route, and there was 
no evidence that he was actually trying to avoid anticipated danger, he is not free from 
contributor^'- negligence, and can not recover damages because of being tripped up by a 
loose board in the sidewalk. Where a traveler knows of the general condition of a side- 
walk and that some boards are loose and dangerous, but does not know that the partic- 
ular board over which he afterwards trips was loose, he is held to know of the defect. 
Town of Boswell v. Wakley, 149 Ind. 64. 

Same. — One who sees an obstruction in a street or sidewalk, and, knowing its dan- 
gerous character, deliberately goes into or upon it when he is under no com^pulsion to 
do so, or might avoid it by going around, takes the risk upon himself, and if injured on 
account of such obstruction can not, because of contributory negligence, maintain an 
action therefor. Town of Gosport v. Evans, 112 Ind. 133. 

Same. — It is contributory neghgence upon the part of a horseman, who, riding upon 
a street in a city or town, encounters an obstruction Vv^hich frightens his horse, to there- 
after, voluntarily and without necessity to do so, again ride his horse in proximity to 
such obstruction. Town of Salem v. Walker, 16 App. 687. 

Same — Action — Burden,— In an action against a municipal corporation for injuries 
caused by the failure of the corporation to keep the streets in safe condition, the plaint- 
iff must allege in his complaint and prove that the injury was incurred mthout his own 
negligence having contributed thereto. The burden is on him to show, not only the 
negligence of the corporation, but his own freedom from negligence contributing to the 
injury. Tow^n of Salem v. Walker, 16 App. 687. But this rule has been changed so that 
absence of contributory negligence need not be alleged and proved by the plaintiff, neg- 
ligence of the plaintiff being made matter of defense provable under the general denial. 
See Acts 1899, p. 58. 

Knowledg"e of defect—Traveler not bound to foreg-o travel— Degree of care.— 
Knowledge that there is a defect in a highway', making it dangerous to attempt to 
travel upon it, does not of itself make it negligence to use the highway carefully and 
cautiously. Knowledge of this existence of a dangerous place does, however, make 
it incumbent upon the traveler to use care and caution proportionate to the danger 
which he know^s lies in his way. Town of Salem v. Walker, 16 App. 687 ; City of In- 
dianapoUs v. Cook, 99 Ind. 10; Town of Albion v. Hetrick, 90 Ind. 545; Toledo, etc., 
R. Co. V. Brannagan, etc., 75 Ind. 490; City of Huntington v. Breen, 77 Ind. 29; Wil- 
son V. Trafalgar, etc., Co., 93 Ind. 287; Turner v. Buchanan, 82 Ind. 147; Murphy 
V. City of Indianapolis, 83 Ind. 326; Town of Gosport v. Evans, 112 Ind. 133; Lake 
Shore, etc., R. Co. v. Pinchin, 112 Ind. 592; Vance v. City of Franklin, 4 App. 515; 
Evansville, etc., R. Co. v. Carvener, 113 Ind. 51; City of Richmond v. Mulholland, 



§ 1258 TOWNS. 804 

116 Ind. 173; Evansville, etc., R. Co. v. Crist, 116 Ind. 446; Pennsylvania Co. v. 
Marion, 123 Ind. 415 ; City of Ft. Wayne v. Breese, 123 Ind. 581 ; City of Columbus 
V. Strassner, 124 Ind. 483; Town of Williamsport v. Lisk, 21 App. 414; City of Hunt- 
ingburg v. First, Ind. App. Ct., March 10, 1899. 

Instruction to Jury— Harmless error,— An instruction that if the street was in or- 
dinarily safe condition for ordinary public travel, the plaintiff could not recover, the town 
not being bound to provide against extraordinary conditions or circumstances, is cor- 
rect as an abstract proposition, and, even if not applicable to the case made, is not 
harmful to the plaintiff. Alexander v. Town of New Castle, 115 Ind. 51, 54. 

Neglig-eiice — Question for jury. — Where the evidence is conflicting it is for the jury 
to find from the evidence whether the defendant was negligent and the plaintiff free 
from fault and not for the court to find as matter of law. Town of Williamsport v. 
Lisk, 21 ApD. 414. 

Defect in street — Act of third person— Damag'es. — In an action against a town, to 
recover damages for injuries received by a person while travehng on one of her public 
streets, by reason of a defect therein, it is no defense that such defect was caused by 
the act of a third person, without the consent of the town. Where, in such case, dam- 
ages are recovered from the town for such injury, the latter, in an action against such 
third person, may compel him to repay such damages. Town of Centerville v. Woods, 
57 Ind. 192; Town of Elkhart v. Eitter, 66 Ind. 136; Elliott Roads and Streets, pp. 546, 
547. 

Same— Cost of repairs— Recovery from third person.— ^^Tiere a third person has^ 
unlawfully injured a public street of a town, which he has refused, on demand, to re- 
pair, and the same has been repaired by the town, he is hable to the latter for the cost 
of such repairs. Town of Centerville v. Woods, 57 Ind. 192. 

Contributory negligence of third person.— Persons who are injured by reason of 
defects or obstructions in streets, and who are free from fault, may recover for such inju- 
ries, although the negligence of some third person may have contributed to the injury. 
Town of Knightstown v. Musgrove, 116 Ind. 121; Louisville, etc., R. Co. v. Creek, 130 
Ind. 139; City of Michigan City v. Boeckling, 122 Ind. 39; Town of Nappanee v. Ruck- 
man, 7 App. 361 ; Elhott Roads and Streets, pp. 451, 452. 

The concurring fault of the driver of the vehicle in which the plaintiff is riding will 
not defeat his action, when he is himself free from fault; in such case a husband's neg- 
ligence is not imputed to the wife. Town of Knightstown v. Musgrove, 116 Ind. 121 ; 
City of Michigan City v. Boeckling, 122 Ind. 39; Louisville, etc., R. Co. v. Creek, 130 
Ind. 139; Miller v. Louisville, etc., R. Co., 128 Ind. 97; Elliott Roads and Streets, pp. 
631, 632. 

The contributory negligence of the driver and manager of a carriage will not defeat 
an action by one who was passively riding with him upon invitation, for personal inju- 
ries caused by the negUgence of town authorities in leaving a dangerous obstruction in 
the streets without proper safeguard, if the person injured be himself without fault. 
Town of Knightstown v. Musgrove, 116 Ind. 121. 

When negligence of third persons is a defense.— Before the concurring negligence 
of a third person can be interposed to shield another, whose negligence has caused an 
injury to one who was without fault, it must appear that the injured person and the one 
whose negligence contributed to the injury sustained such a relation to each other in 
respect to the matter then in progress, that in contemplation of law the neghgent act of 
the third person was, upon the principles of agency, or co-operation in a common or 
joint enterprise, the act of the person injured. Town of Knightstown v. Musgrove, 110 
Ind. 121; Town of Nappanee v. Ruckman, 7 App. 361. 

Contributory negligence— Master and servant— Complaint.— In an action against a 
town for a personal injury received while attempting to cross a gully in a street, over 
which the plaintiff was driven by a servant in a wagon loaded with hay, an allegation 
in the complaint that the plaintiff was without fault is equivalent to an allegation that 



805 OPENINGS AND VACATIONS. § 1258 

neither the plaintiff nor his servant was in fault; and allegations that, though seeing 
the gully, the plaintiff believed it reasonably safe to make the attempt, and used due 
and ordinary care, and that there was no other safe road, do not show contributory 
neghgence on the part of plaintiff. Town of Albion v. Hetrick, 90 Ind. 545. 

Same— Question of fact for jury— Witness— Opinioii.~ln the case stated in pre- 
vious note, whether the plaintiff, in attempting to cross the gully, was guilty of negli- 
gence, is a question of fact for the jury. Upon the trial of such action the opinions of " 
witnesses who are acquainted with the street are not admissible to prove that the place 
was so dangerous that a prudent man would not attempt to cross it. Town of Albion v. 
Hetrick, 90 Ind. 545. 

Liability of property owner or third person— Damages paid by town.— If a town 
is compelled to pay damages on account of a defect in a street, and such defect was 
caused by the wrongful act of a third party, such town may recover the amount of such 
damages from such third person. McNaughton v. City of Elkhart, 85 Ind. 384; Town 
of Centerville v. Woods, 57 Ind. 192; City of Elkhart v. Wickwire, 87 Ind. 77; Wick- 
wire V. Town of Angola, 4 App. 253. 

Notice to defend — Effect. — Where the person who has wrongfully or negligently 
caused the injury is notified of an action against the town, instituted by one who has 
suffered injury because of such wrongful and negligent act, the judgment will be con- 
clusive against him as to the questions adjudicated in the action. City of Elkhart v. 
Wickwire, 87 Ind. 77 ; McNaughton v. City of Elkhart, 85 Ind. 384. 

Judg'ment — Res adjudicata.— In such case, w-here the town, upon being sued, noti- 
fied the wrong-doer thereof, and that it will look to him for indemnity, the judgment 
concludes him as to the facts thereby adjudicated. McNaughton v. City of Elkhart, 85 
Ind. 384. 

Railroad crossings— Watchmen— Gates.— An incorporated town can not by ordi- 
nance compel a railroad company to keep a watchman and erect and maintain gates at 
points where the tracks cross a street, and impose penalties for the failure so to do. 
Express power has not been conferred by the statute to pass and enforce such an ordi- 
nance, nor can such power be implied from those expressly granted, nor is such power 
essential to the declared objects or purpose of the corporation. Pittsburgh, etc., R. Co. 
V. Town of Crown Point, 146 Ind. 421. 

RaUroad— Construction of in hig-hw ay— Injury to person near track.— Where a 
railroad company constructs its road-bed along and over a public highway, extending 
through a town, rendering the use of such highway for vehicles impossible, but the 
public continued to use it for a footway, and on each side of the track a space three feet 
wide is kept smooth by the company for the use of foot passengers, the company will 
be liable to a person who is injured while walking along the footway by being struck, 
when at a distance of forty feet from the track, by a cross-tie falling from a derailed car 
of a passing train, such car being derailed by the negligence of the company. In such 
case the person is on the public highway, where he has a right to be, and he may 
recover from the company for the injuries sustained. Louisville, etc., R. Co. v. Downey, 
18 App. 140. 

[Acts 1885, p. 74. In force July 18, 1885.] 

Bridg'es in cities and towns.~All bridges, the estimated cost of which shall exceed 
$500, to be built within the corporate limits of any city or town within this state, shall 
be built by the board of county commissioners in the same manner and paid for out of 
the same funds that other bridges without such corporate limits of such town or city 
are by law built and paid for. R. S. 1894, § 3283. 

See Cities, ante, §218 and note. Bridges, Duties, Liabilities. 

Board of commissioners— Bridg'es. — While the act of 1885 imposes the duty of con- 
structing bridges in towns and cities in certain cases upon the board of commissioners, 
still this act does not withdraw all power from towns and cities to build bridges, in 



§1259 TOWNS. 806 

such cases, when they deem it proper to do so. City of iSew Albany v. Iron Substruc- 
ture Co., 141 Ind. 500. 

Same— Statute construed— Discretion— Mandate.— Said act of 1885 does not confer 
power on cities, by mandate or otherwise, to force the county board to build a bridge 
at any point deemed desirable or convenient by the city government. That must be 
left to the sound discretion of the commissioners except in cases of extraordinary pub- 
lic necessity. It is the judgment of the board and not that of the city authorities, which 
is to determine what kind of a bridge should be built. Board, etc., v. City of Wash- 
ington, 141 Ind. 187. 

Same— Control of by towns— Repairs.— Said act of 1885, making it the duty of the 
board of county commissioners to build all bridges within the corporate limits of any 
city or town within the state, the estimated cost of which exceeds §500, does not pur- 
port to in any other manner interfere with the absolute control of the city or town over 
the bridges, nor does it relieve the cities and towns from the duty of keeping them in 
repair. City of Wabash v. Carver, 129 Ind. 552; Town of Boswell v. Wakley, 149 
Ind. 64. 

Municipalities are liable for neghgence of officers in the construction and repair of 
bridges, culverts, etc., even if counties are not. Town of Boswell v. Wakley, 149 Ind. 64. 

Neg"lig'ence — Bridg*e — Complaint. — In an action against a municipal corporation for 
an injury to plaintiff's horses, caused by the defective condition of the approach of a 
bridge, a complaint which fails to designate any act or omission of the corporation as 
the cause of the injury, is insufficient. Town of Williamsport v. Smith, 2 App. 360. 

Hig-hways— Streets— Opening"— County commissioners.— The board of trustees of 
an incorporated town are clothed with exclusive power, in laying out, surveying and 
opening new streets, alleys and highways, within the corporate limits. The board of 
commissioners of a county have no power whatever to open a highway within the limits 
of an incorporated town of such county, without the consent, express or implied, of the 
board of trustees thereof. Sparling, etc., v. Dwenger, 60 Ind. 72; Tucker v. Conrad, 103 
Ind. 349; Chicago, etc., R. Co. v. Sutton, 130 Ind. 405. 

Road supervisors. — Road supervisors have no authority over the streets of a town, 
and may be convicted for obstruction of the same in making repairs. State v. Mainey, 
65 Ind. 404. 

The act of 1852, for the incorporation of towns, did not empower the corporate au- 
thorities to construct wharves, but they will not be restrained from grading a street 
merely because a wharf will accidentally result. Snyder v. Town of Rockport, 6 Ind. 
237. 

Under said act of 1852, the town authorities can not apply money raised for improv- 
ing a street to the construction of a wharf, except so far as such wharf may be a mere 
incident to the legitimate improvement of the street. Snyder v. Town of Rockport, 6 
Ind. 237. 

1259. Opening streets. — 2. When, upon petition signed by twelve 
freeholders, residents of any town, the board of trustees of such town 
may be of the opinion that public convenience requires the opening 
of a new street or alley, or widening or narrowing of a street or alley 
already opened, the board of trustees shall appoint three commission- 
ers, residents of said town, who shall be disinterested freeholders, to 
appraise and assess the damages and benefits accruing to the owner of 
any land or lot through which any street or alley is proposed to be 
constructed or altered, or any building or structure thereon appro- 
priated, as provided in the preceding section. Such commissioners 
shall, before they proceed to perform their duties as said appraisers, 



807 OPENINGS AND VACATIONS. § 1260 

take and subscribe an oath or affirmation faithfully to perform their 
duties as such appraisers; which shall be indorsed upon or attached 
to their appointment, and filed with the clerk of the board. Twenty 
days' notice shall be given such commissioners by the board of trustees, 
through the town clerk, of the appraisement to be made, giving a com- 
plete description of the premises to be viewed. A like notice shall be 
given by personal service, or by leaving the same with some person of 
suitable age at their reputed place of abode, to each of the owners or 
agents of lots or lands upon or through which the public improvement 
or street or alley is proposed to be made. If the owners are unknown 
or non-residents, publication of the same in one or more newspapers 
of the town, or by posting up written notices in six public places in 
the town (if there be no newspaper published therein), for three weeks, 
shall be deemed equivalent to such personal service. R. S. 1894, 
§ 4405. 

Wiilening" and improvement of street— Assessment void.— An incorporated town 
has no authority to order, in the same proceedings, a street to be widened, graded and 
graveled, as the proceeding to widen is distinct from a proceeding to grade and gravel, 
and these proceedings can not be blended, and an assessment made by virtue of such 
order is void. Mendenhall v. Clugish, 84 Ind. 94. 

Notice — Jurisdictional fact. — The finding of the board of trustees that due notice of 
the proceeding for the improvement has been given to a property owner is conclusive 
against others who have been properly served. Town of Rensselaer v. Leopold, 106 
Ind. 29, 37; Porter v. Stout, 73 Ind. 3; Grimes v. Coe, 102 Ind. 406. 

Consent of lot-owners. — The statute requiring the written consent of a lot-owner to 
the vacation of a street in front of his lot, has no application to an improvement by 
narrowing or altering it. Town of Eensselaer v. Leopold, 106 Ind. 29, 31. 

Condemnation proceeding's, validity of. — Condemnation proceedings will not be 
held void, where there has been a substantial compliance with the requirements of the 
statute, and they have been made in good faith. Graves v. Town of Middletown, 137 
Ind. 400, 403. 

Notice, waiver of. — By appearing before the treasurer and demanding damages as- 
sessed, after condemnation proceedings by a town for the opening of an alley, an owner 
waives any defect in the service of notice on him. Graves v. Town of Middletown, 137 
Ind. 400, 402. 

Notice— Injunction. — Where all the proceedings in an action to open an alley are 
confessedly in compliance with the requirements of the statute, except that notice was 
given by publication to parties who were residents of the state, some notice being given, 
the proceedings were not void, and can not be attacked collaterally by way of injunc- 
tion. Graves v. Town of Middletown, 137 Ind. 400. 

1260. Duty of commissioners. — 3. Such commissioners, or a ma- 
jority of them, shall, at the place and time indicated in such notice, 
proceed to an examination of the real estate proposed to be appro- 
priated as aforesaid, and shall then and there estimate, first, the value 
of the land or other property to be appropriated for such improvement; 
second, what real estate, if any, would be benefited by the improve- 
ment, specifying the same in parcels, with the name of the owner, if 
known, and the proportion of benefits each owner receives, and the 
proportion of damages each would sustain. They shall view the premi- 



§ 1261 TOWNS. 808 

ses, and receive any evidence touching the question before them; and 
may, for that purpose, administer oaths to witnesses examined in re- 
lation thereto. They shall report on each of the specifications above 
indicated, and, within ten days thereafter, file the same with the clerk 
of the board of trustees. R. S. 1894, § 4406. 

Benefits and damag'es.— Where the report of the commissioners appointed by the 
board of trustees to assess benefits and damages is silent as to the value of the right in 
question and resulting damages, it will be presumed that the commissioners considered 
them as nothing. Town of Eensselaer v. Leopold, 106 Ind. 29, 35. 

1261. Tender of damages. — 4. When such report is filed, as in 
the preceding section required, the board of trustees, if it accept the 
terms of the same, shall direct the treasurer of the town to tender the 
owner or owners of such real estate, or their heirs or representatives, 
the damages awarded by such commissioners, deducting the amount 
of benefits assessed to such owner or owners; or if not found within 
the town, or the award is not accepted, then the sum shall be kept by 
the treasurer as a special deposit, subject to the order of such owner 
or his heirs or representatives. R. S. 1894, § 4407. 

Benefits — Acceptance — Effect. — The reception and retention of an award of damages 
in condemnation proceedings estop the landholder to deny the validity of the proceed- 
ings. Holland v. Spell, 144 Ind. 561 ; Test v. Larsh, 76 Ind. 453 ; Byer v. Town of New 
Castle, 124 Ind. 86. 

Report— Nunc pro tunc entry. — The town may order the entry nunc pro tunc of the 
report of assessors of benefits and damages caused the property of a designated person 
by the opening of a street, which has been inadvertently omitted from the records. Hol- 
land V. Spell, 144 Ind. 561 ; Chamberlain v. City of Evansville, 77 Ind. 542. 

Wrong'ful appropriation of land lor street— Injunction.— Injunction is the proper 
remedy where a town is proposing to appropriate an owner's land for a street wrong- 
fully under color of right, without assessment and tender of compensation. Town of 
Hardinsburg v. Cravens, 148 Ind. 1; City of New Albany v. T\Tiite, 100 Ind. 206; 
Sidener v. Turnpike Co., 23 Ind. 623. 

1262, Assessment — Collection. — 5. If the board of trustees, within 
twenty days after the filing of said report, by a vote of a majority of 
the members, determine to make the appropriation of real estate for 
such improvement, it shall cause an assessment list to be made, by 
transcribing so much of the report, as aforesaid, as describes the par- 
cels of real estate to be benefited by the opening or improvement, with 
the name of the owner, if known, and the amount of benefits which 
each would receive, thereby directing such amount to be assessed upon 
such parcels of real estate respectively; which assessment shall be a 
lien on such real estate. The board of trustees may, immediately after 
making such assessment, by suit in any court of competent jurisdic- 
tion, in the name of such corporation, recover against the owners of 
such parcels of real estate the amount of such assessment; and upon 
execution against the property of said defendant upon such judgment, 
the same shall be sold for cash without regard to valuation or appraise- 
ment laws of this state. R. S. 1894, § 4408. 



809 OPENINGS AND VACATIONS. § 1263 

1263. Action on report — Appeal. — 6. The board of trustees shall, 
within twenty days from the filing of said report, either accept or 
reject the terms of the same. And any owner of land or representa- 
tive thereof, aggrieved by such report, may appeal therefrom at any 
time, within thirty days after the filing thereof, to any court having 
jurisdiction of the same, upon filing the usual bond with the clerk of 
said town for the payment of costs. But no such appeal shall prevent 
any such town from proceeding with said appropriation and improve- 
ment as if no appeal had been taken. No other question shall be de- 
termined than the regularity of the proceeding in the suit and the 
amount of damages sustained. R. S. 1894, § 4409. 

Commissioners' report— Parol evidence.— Wliere the record of the board of trustees 
shows that a proper petition praying for the opening of a street was filed ; that com- 
missioners were duly appointed to assess benefits and damages, and that the commis- 
sioners made and filed their report with the town clerk, but fails to show that the 
board accepted the report within twenty days, or that any further action was taken by 
that body in opening the street, it is incompetent to prove by parol that the board of 
trustees accepted the report within the time prescribed, and that it determined to make 
the appropriation of the land therein described. Byer v. Town of New Castle, 124 Ind. 
86, 87. 

Eejecting" commissioners' report— Termination of cause— Appeal,— Where a board 
of trustees of a town, on a petition to widen a certain street, appointed three commis- 
sioners to assess the benefits and damages, and make report of the same, and, upon 
hearing the report, rejected it, the board of trustees, in rejecting the report, determined 
the proceedings, and such board had no authority to revise the proceedings, or put on. 
foot new proceedings to widen the street, without a new petition being filed for that 
purpose. From the final action of the commissioners an appeal will He. Millisor v. 
Wagner, 133 Ind. 400. 

1264. Infants and insane. — 7. When the owner of any such land 
or building, appropriated as aforesaid, shall be an infant or of unsound 
mind, no proceeding shall be had affecting the rights of such persons 
until a guardian therefor shall be appointed by the court having pro- 
bate jurisdiction, and such guardian shall have given security to the 
satisfaction of such court for the faithful performance of the trust; but 
any proceeding affecting such rights shall only be void to that extent. 
R. S. 1894, § 4410. 

[Acts 1897, p. 272. In force March 8, 1897.] 

1265. Opening and improving streets. — 1. That the boards of 
trustees for incorporated towns within said state shall have the same 
powers and rights for the purpose of opening or improving streets and 
alleys within such towns and to condemn and appropriate lands owned 
by any person, company or corporation which lands are then in use 
for public purposes the same as they now have the right to condemn 
lands where the same are used or held for private purposes: Provided, 
That upon the condemnation of such lands the owners thereof shall be 
awarded damages therefor the same as an individual or corporation 



§ 1266 TOWNS. 810 

would be if such lands were used or held for private purposes. Burns' 
Supp. 1897, § 4410a. 

Appropriation of land taken for one public use to another.— Lands once taken for a 
public use can not under general laws, without an express act of the legislature for that 
purpose, be appropriated by proceedings in invitum to a different public use. When the 
statute expressly authorizes municipal corporations to extend streets and alleys across 
property devoted to public use, such appropriation to the second use may be made. 
City of Terre Haute v. Evansville, etc., E. Co., 149 Ind. 174; Baltimore, etc., E. Co. v. 
North, 103 Ind. 486 ; City of Ft. Wayne v. Lake Shore, etc., E. Co., 132 Ind. 558 ; 3 Elliott 
Eailroads, § 966. For additional authorities, see ante, § 218, note, Eminent Domain — 
Streets. 

[1 E. S. 1852, p. 493. In force May 6, 1853.] 

1266. Record of plats. — 1. Any person who may hereafter lay off 
any town, or addition thereto, in this state, shall, previous to the sale 
of any lots in such town, cause to be recorded in the recorder's office 
of the county wherein the same may lie, a correct copy of the plat of 
said town, with the public grounds, streets, lanes, and alleys, with 
their respective widths properly marked, the lots regularly numbered, 
and the size of the lots marked by reference to the plat. R. S. 1894, 
§ 4411. 

See Cities, ante, § 380, et seq., and Cities and Towns, ante, § 1040; also, § 218, note, 
Dedication. 

A statute authorizing the survey and platting of land for a town, etc., is a public act, 
and is not necessary to be pleaded in order that the plat of the town may be admitted 
as evidence, such plat being declared by the statute a public record. Such statute, de- 
claring the map of such town a public record, constitutes, of itself, the streets and alleys 
in the town public highways. West v. Blake, 4 Blackf. 234. 

Plat— When not entitled to record.— A plat not signed and acknowledged is not en- 
titled to record. Taylor v. City of Ft. Wayne, 47 Ind. 274; Allen v. City of Vincennes, 
25 Ind. 531. 

Siirae. — A plat of lands not being a plat of a town or city, nor of an addition thereto, 
is not such a plat as may be recorded. Taylor v. City of Ft. Wayne, 47 Ind. 274; Town 
of AVoodruff Place v. Easchig, 147 Ind. 517 ; Forsythe v. City of Hammond, 142 Ind. 505. 

Record of plat without authority— Sale of lots— Effect.— If a plat is recorded with- 
out authority of law, and lots are sold by the owner by reference to the plat, a dedica- 
tion of the streets and alleys arises by such sale of lots with reference to the plat. Town 
ol Woodruff Place v. Easchig, 147 Ind. 517 ; Ehodes v. Town of Brightwood, 145 Ind. 21. 

Town plat — Explanatory note— Evidence. — An explanatory note upon a town plat, 
which is inconsistent with all other things w^hich appear by the plat, including courses 
and distances marked thereon, will not control the other facts thus appearing where the 
location of a lot is in dispute. Hunter v. Eichel, 100 Ind. 463. 

Same— Parol evidence. — When the recorded plat of a town shows the width of a 
certain street, parol evidence to show that the proprietor of the town intended the 
street to be of a different width than shown by the plat is inadmissible. Wood v. Man- 
sell, 3 Blackf. 124; Elliott Eoads and Streets, p. 123, notes and cases. 

Same — Construction. — A plat must be construed like a written instrument, and no 
part of it can be regarded as superfluous or meaningless if such a result can be reason- 
ably avoided. City of Noblesville v. Lake Erie, etc., E. Co., 130 Ind. 1; Elliott Eoada 
and Streets, pp. Ill, 112. 

Practical construction.— If the meaning of the person who executed the plat is 



811 OPENINGS AND VACATIONS. § 1267 

doubtful, the practical construction put upon it by the acts of the parties concerned 
will be accepted by the courts. City of Noblesville v. Lake Erie, etc., R. Co., 130 Ind. 1. 

Eeseryations — Intentioii.— A'lliere a plat into lots of an addition to an incorporated 
town or city is made, and reservations for any purpose are marked on such plat, the 
intention of the proprietor of the plat in regard to the meaning of the marks on such 
reservations is in general a question of fact, and not of law, Pidgeon v. McCarthy, 82 
Ind. 321, 328. 

'• General Harrison's Reserve."— General William Henry Harrison, in 1816, made a 
plat of an addition to the borough of Vincennes, and marked thereon one of the lots 
with the words, " General Harrison's Reserve." The lot so marked was assessed there- 
after for municipal purposes by the borough, town and city of Vincennes, in their suc- 
cessive corporate capacities, and for nearly sixty years such taxes so assessed were paid 
to the proper officer of the corporation by the successive owners of the lot . It was a 
proper conclusion of law upon such facts and others of like import, that said lot was 
within the corporate limits of the city of Vincennes, and was subject to taxation by 
the city authorities for municipal purposes, as other real estate within the city limits. 
Pidgeon v. McCarthy, 82 Ind. 321, 328. 

1267. Donation by plat.— 2. Every donation or grant to the pub- 
lic, or to any individual, religious society, corporation or body politic, 
noted as such on the plat of the town wherein such donation or grant 
may have been made, shall be considered a general warranty to the 
said donee or grantee for the purposes intended by the donor or grantor. 
R. S. 1894, § 4412. 

Dedication of street— Sale of lots with reference to street.— The making of plats 
of towns upon which streets and alleys are designated, and the recording of such plats 
and sale of lots with reference thereto, operate as a dedication to the public of all streets 
and alleys marked on such plat. Miller v. City of Indianapolis, 123 Ind. 196; Rhodes 
V. Town of Brightwood, 145 Ind. 21; City of Indianapolis v. Kingsbury, 101 Ind. 200; 
Faust V. City of Huntington, 91 Ind. 493 ; City of Logansport v. Dunn, 8 Ind. 378 ; City 
of Evansville V. Page, 23 Ind. 525; Cox v. Louisville, etc., R. Co., 48 Ind. 178; Wolfe v. 
Town of Sullivan, 133 Ind. 331; Fossion v. Landry, 123 Ind. 136; Town of Woodruff v. 
Raschig, 147 Ind. 517 ; Doe v. Town of Attica, 7 Ind. 641 ; EUiott Roads and Streets, 
pp. 14, 15, note 20. 

Under a prior incorporating act, the designation of a street on the recorded plat of a 
town operated, by virtue of the statute, as a general warranty conveyance to the town, 
to individuals, or to the public, according to the intention of the grantor. The designa- 
tion on the plat of a street operates as a grant of a highway to the public, but were it 
an exclusive grant to the corporation, and the street on a river, it would not vest such 
right to the soil, as would authorize the establishment of a ferry under the statute. 
Conner v. President, etc., 1 Blackf. 43. 

Irrevocable— Estoppel in pais.— A dedication once made is irrevocable ; it is con- 
sidered as in the nature of an estoppel in pais. Town of Marion v. Skillman, 127 Ind. 
130, 136; City of Noblesville v. Lake Erie, etc., R. Co., 130 Ind. 1, 3; Shankhn v. City 
of Evansville, 55 Ind. 240; Haynes v. Thomas, 7 Ind. 38; Common Council, etc., v. 
Croas, 7 Ind. 9. 

Revocation before acceptance.- Prior to the acceptance by the public the owner 
may revoke such dedication. Steinhauer v. City of Tell City, 146 Ind. 490. 

The dedication becomes irrevocable after private rights have accrued by reason of the 
dedication, as by sale of lots by reference to the plat showing the dedication. Rhodes 
V. Town of Brightwood, 145 Ind. 21. 

Corrected plat— Revocation.— Where a i.i:ingular tract at the intersection of two 



§ 1267 TOWNS. 812 

streets, as shown upon a town plat, was not separated from the streets by lines, and 
two years afterwards a corrected plat was filed which expressly reserved said triangular 
tract, there being no evidence that said tract had been intended to be dedicated to the 
pubhc, and no evidence of acceptance thereof by the public, the making and recording 
of said first plat did not constitute a dedication of said triangular tract. Steinhauer v. 
aty of Tell City, 146 Ind. 490. 

Use of unenclosed lot in town for street purposes— Passive acquiescence, effect, — 
Mere passive acquiescence, with knowledge by the owner, of an unenclosed and unim- 
proved lot in a town or city, in its use by the public for street or highway purposes, 
until such time as he may be able and willing to improve the same, does not constitute 
a dedication. Tucker v. Conrad, 103 Ind. 349. 

User— General highway law.— The provisions of § 6762, R. S. 1894, in relation to 
highways by user, are not applicable to the public streets of a town or city. Tucker v. 
Conrad, 103 Ind. 349; Brown v. Hines, 16 App. 1. 

But where there has been twenty years' use of the way, prior to its annexation to the 
city, such use constitutes a public one prior to the annexation. Upon annexation of 
the territory through which it extends to the city, such pubhc highway becomes one of 
the streets of the city. Such street may be improved as any other street and the cost 
thereof collected as in other cases. Brown v. Hines, 16 App. 1. 

Dedication of land to public use— Intention of party.— ^Tiere the declarations, 
acts, and conduct of a land-owner are such as fairly and naturally lead to the conclu- 
sion that he intended to dedicate land to public use, and others have in good faith acted 
upon such acts and declarations, the fact that the land-owner may have entertained a 
different intention from that manifested by his acts and declarations can not prevail 
against the force of his conduct and acts upon which the pubhc or those dealing with 
him have relied. Pittsburgh, etc., R. Co. v. Noftsger, 148 Ind. 101. 

Dedication of street by plat— Evidence.— The filing and recording of a plat of an 
addition to a town shows, prima facie, that the dedicator was the owner of the land 
and intended to dedicate the streets marked on the plat. Town of Fowler v. Linguist, 
138 Ind. 566. See City of Lawrenceburg v. Wesler, 10 App. 153. 

Conditions annexed to dedication. — A donor can not attach to a dedication any 
condition that will destroy its chief characteristic or take it from the control of the 
public authorities ; if such a condition be attached, it is void and the dedication valid. 
City of Noblesville v. Lake Erie, etc., R. Co., 130 Ind. 1. 

Same — Condition that railroad may be laid In street. — The use of a street for a 
railroad is a public use, and is not necessarily destructive of the character of the public 
way ; and a condition annexed to a dedication that a railroad company should have 
the right to lay a track or tracks in the street dedicated is not void. City of NoblesviUe 
V. Lake Erie, etc., R. Co., 130 Ind. 1. 

Width of street dedicated — Example.— North of a small unplatted tract of land in a 
town was a platted tract, and south of it a tract similarly platted, both plats within the 
town limits. A platted street in the north plat extended south to the north hue of the 
unplatted tract ; and a similar platted street, of the same width and name, began at the 
south line of such unplatted tract, in a direct hne with the north street, and extended 
south through the south plat. That portion of the unplatted tract lying between where 
the street ended on the north and the other commenced on the south was unfenced 
and unoccupied to the full width of the streets, except a narrow strip on the west side 
covered by a hotel. Such had been the condition of the three tracts of land for more 
than twenty years, and the public had used the two streets, and the space across the 
unplatted tract as a street, for that length of time. There was a dedication of a strip 
across the unplatted tract to the full width of the two streets, except that portion 
occupied by the hotel, and the three parts constituted one street. Town of Marion v. 
Skilhnan, 127 Ind. 130, 137. 



813 OPENINGS AND VACATIONS. § 1267 

Where a sti-eet has been dedicated to public use by recording the plat, if there is un- 
certainty^ as to its boundaries, in the first instance, the subsequent user by the public 
for a long period of years would of itself mature into a right. City of Evansville v. 
Page, 23 Ind. 525. 

Invalid statutory dedication — Dedication by user.— Streets and alleys of a town, as 
fixed by continuous user for more than twenty years, will prevail as against a prior 
invalid statutory dedication. Waltman v. Eund, 109 Ind. 366; Town of Marion v. 
Skillman, 127 Ind. 131. 

Acceptance of dedication. — Where it appears that a street was used by the public 
both before and ever since the dedication, and that the town authorities worked the 
street where such work was needed, an acceptance of the dedication is sufficiently 
established. Town of Fowler v. Linquist, 138 Ind. 566. 

Husband and wife — Donation by husband bars wife's interest.— A donation or 
grant of land by a husband to a municipal corporation for use as a street bars the in- 
choate interest of his wife in such land. Duncan v. City of Terre Haute, 85 Ind. 104; 
City of Indianapohs v. Kingsbury, 101 Ind. 200, 220; Robinson v. Thrailkill, 110 Ind. 
117; Indiana, etc., E. Co. v. Allen, 113 Ind. 581, 585. 

Dedication— Park— Parol evidience. — An irrevocable dedication of land is effected 
by designating certain land on a map filed in the county recorder's office as a "park," 
and by selling lots with reference to the map ; and where a dedication of a tract of land 
is expressed, evidenced by a recorded plat, the intent, as expressed by such plat, can 
not be contradicted by parol evidence. Ehodes v. Town of Brightwood, 145 Ind. 21 ; 
Doe V. Town of Attica, 7 Ind. 641 ; Miller v. City of Indianapohs, 123 Ind. 196. 

Same— Corporation trustee for public— Change of trustee.— Where there has been 
laid out and filed a plat of land as an addition to a city, upon which plat a portion of 
the land is designated as a "park," and there has been a sale of lots with reference to 
the plat, the dedication of the "park" thus effected is to the public, and maybe as- 
serted by a town subsequently incorporated, which annexes such addition to its corpo- 
rate limits, for a change of trustee does not defeat the dedication. Ehodes v. Town of 
Brightwood, 145 Ind. 21. 

Same — Unauthorized taxation— Estoppel.— A municipal corporation is not estopped 
to assert a dedication of land, by the unauthorized taxation thereof to the original 
ow^ner, after dedication. Ehodes v. Town of Brightwood, 145 Ind. 21. 

Same— Public square— Public g-round, etc.— Dedication to public use is shown by 
spaces on plats designated by the words, block, public square, public ground, conmion, 
county block, college square, plaza, place, etc. Ehodes v. Town of Brightwood, 145 
Ind. 21; Doe v. Town of Attica, 7 Ind. 641 ; 2 Dillon Munic. Corps. (4th ed.), § 645. 

Church— Market— Public square, etc.— The designation upon a plat of a lot or space, 
as a site for a church, seminary, market or common, operates as a dedication of the 
same to the public for such purpose; and the words "pubhc square," have, in this 
state, acquired a definite legal meaning, and when written or printed in a proper place 
on the plat of a town designed for a county seat, the place so designated is set apart as 
the site of the court-house, and other county buildings. City of Logansport v. Dunn, 
8 Ind. 378. 

River landing*- Easement— Implied dedication— Alluvial accretions.— The imphed 
dedication by the owner of land platted for a town site of a strip of land fronting on a 
river, to the public as a common, for the purpose of a landing and for access to the 
river, does not vest in the town, or in the public, the fee of the land, but the fee re- 
mains in the grantor subject to the easement. Such easement attaches to alluvial addi- 
tions caused by the changes in the course of the river, and the public has the right to 
pass over such additions for the purpose intended by the dedication. Town of Freedom 
v. Norris, 128 Ind. 377. 

Same— Abandonment of easement— Non-user.— A non-user of the easement, for 



§ 1268 • TOWNS. 814 

the purpose intended, for a period of thirty years, due to an abandonment of commerce 
upon the stream, will be taken as an abandonment of the easement. Town of Freedom 
V. Norris, 128 Ind. 377. 

Donation for particular use.— If a parcel of land is donated by plat for a particular 
use, and is not accepted for such use, the title will remain in the donor. Rule applied 
to land designated on plat '' public square." Westfall v. Hunt, 8 Ind. 174; Vaughn v. 
Stuzaker, 16 Ind. 338; Rhodes v. Town of Brightwood, 145 Ind. 21. 

Plat books— Public record— Judicial notice. — Judicial notice will be taken that 
books known as plat books are kept by the county recorders in the various counties of 
the state, in which are recorded the plats of the towns and cities and the additions 
thereto, and that such books are kept as public records. Miller v. City of Indianapolis, 
123 Ind. 196. 

Same— Commissioners in partition. —A plat book is a public record, and a plat 
prepared by commissioners in a partition proceeding which is recorded therein by 
order of the court, is properly recorded. Miller v. City of Indianapolis, 123 Ind. 196. 

[Acts 1881, p. 56. In force March 3, 1881.] 

1268. Plat, liow acknowledged. — 3. The person desiring to lay off 

such lots, before offering such plat for record, shall acknowledge the 
same before some officer authorized by law to take and certify the 
acknowledgment of deeds in the proper county; a certificate of which 
acknowledgment shall be, by the officer taking the same, annexed to 
such plat or other paper, and recorded therewith. R. S. 1894, § 4413. 

Acknowledgement — Eecord. — Plats not properly acknowledged are not entitled to 
record. Taylor v. City of Ft. Wayne, 43 Ind. 274; Forsythe v. City of Hammond, 142 
Ind. 510; Allen v. City of Vincennes, 25 Ind. 531. 

Unauthorized recorded plat— Not evidence.— The record of a plat, not acknowledged, 
is not admissible as evidence. Allen v. City of Vincennes, 25 Ind. 531. 

[1 R. S. 1852, p. 493. In force May 6, 1853.] 

1269. Penalty. — 4. Every person who may lay off any town, or 
any addition to any town, in this state, and fail to comply with the 
requisitions of this act, shall forfeit and pay, for the use of said town, 
for every month, a sum not exceeding one hundred dollars nor less 
than five dollars, to be recovered in the name of the treasurer of the 
county. R. S. 1894, § 4414. 

1270. Imperfect plat. — 5. Where any town plat, heretofore or here- 
after to be recorded, does not clearly describe the size of the lots, 
streets, alleys, and courses of the lines of said town, and where dona- 
tions have been given or intended to be given, either to the public or 
to individuals, or to any religious society, and it has been neglected to 
insert the same on said plat, any of the proprietors of such town are 
hereby required to make out such other description as will more clearly 
explain the true intent; which shall be acknowledged, certified, and 
recorded as required in this act. R. S. 1894, § 4415. 

[Acts 1857, p. 126. In force August 24, 1857.] 

1271. Yacation, — 6. Whenever any person or corporation interested 
in any incorporated town, or in any real estate, in this state, laid out 
in streets and lots as a town, may desire to vacate any lot, street, alley, 



815 OPENINGS AND VACATIONS. § 1272 

common, public square or part thereof, in such town or plat of town, 
such person or corporation may petition the board of county commis- 
sioners of the proper county, giving a distinct description of the prop- 
erty to be vacated and the name of the persons to be affected thereby; 
which petition shall be filed with the county auditor thirty days pre- 
vious to the sitting of such board; and notice of the pendency of said 
petition shall be given, for the same space of time, in a public news- 
paper printed in said county, if any there be, and by written notices 
thereof set up in three public places near the lots, streets, alleys, com- 
mon, or square proposed to be vacated. R. S. 1894, § 4416. 

[1 R. S. 1852, p. 493. In force May 6, 1853.] 

1272. Proceedings coucerniiig vacation. — 7. If no opposition be 
made to such petition, the board of county commissioners may vacate 
the same, with such restrictions as they may deem for the public good; 
but if opposition be made, such application shall be continued until 
the next term of the board, when, if the objector consent to such vaca- 
tion, or if two-thirds of all the real estate holders of the town petition 
therefor, the board may grant the prayer of the petition. R. S. 1894, 
§ 4417. 

1273. Title on vacation. — 8. The part so vacated, if it be a lot, 
shall vest in him who may have the title thereof according to law; and 
if the same be a street or alley, the same shall be attached to the 
ground bordering on such street or alley, and all title thereto shall 
vest in the persons owning the property on each side thereof, in equal 
proportions, according to the length or breadth of such ground, as the 
same may border on such street or alley. And whenever a public 
square shall be vacated, the property thereof shall vest in the board of 
county commissioners, for the use of the county. R. S. 1894, § 4418. 

1274. No vacation, unless owners consent. — 9. But no such vaca- 
tion of a street or alley shall take place, unless the consent of the per- 
sons owning the property immediately adjoining thereto be obtained 
therefor in writing; which consent shall be acknowledged before some 
justice of the peace, and filed with said board. R. S. 1894, § 4419. 

1275. Additions, liow vacated. — 10. If any person shall lay off an 
addition to any town which does not improve, and shall be the legal 
owner of all the lots contained in such addition, such person, or any 
other person who shall become the legal owner thereof, may have such 
addition, or any part thereof, vacated, by applying to the board of 
commissioners of the proper county, after notice as hereinbefore pro- 
vided, and proof of ownership of such lots. R. S. 1894, § 4420. 

1276. Change of name. — 11. Such board may change the name 
of any town upon a petition therefor of a majority of the qualified elec- 
tors of such town; and in case any such change is made, notice thereof 
shall be given by publication, three weeks successively in a newspaper 
of the county, if any, and, if not, by written or printed notices posted 
up in three of the most public places of such town; and a certified 
copy of the order of such change shall be recorded in the recorder's 
office of the county. R. S. 1894, § 4421. 



§ 1277 TOWNS. 816 

[Acts 1879 S., p. 172. In force May 31, 1879.] 

1277. Yacation of unused public square. — 1. Where, in any town- 
ship having a population of less than two thousand according to the 
census of the United States of America, taken in the year of our Lord, 
eighteen hundred and seventy, any tract of land has been platted with 
the viev/ of incorporating said tract of land as a town; and where, with 
the view of locating the county seat of any county upon said tract of 
land in said township, a public square has been donated and made 
part of the plat of the said tract of land, with the idea of locating the 
county court-house upon said public square; and when, for the period 
of sixty years, said public square has never been used for the purpose 
of building a court-house therein, and when, for the period of sixty 
years, the said tract of land so platted has become an incorporated 
town; and when, for the period of sixty years, no county seat of any 
county has been located in the said township, nor upon any tract or 
plat of land therein, then, and in that case, on application of persons 
owning ground adjacent to the said public square to the judge of the 
circuit court of the county where the same is located, and upon their 
showing the state of facts set out in the foregoing portion of this act, 
the judge of the said court shall order the said public square to be 
vacated, and the lot or tract of land composing it shall vest in those 
whose deeds show that they are entitled to said lots or tracts of land 
according to the present records of the county in which such township 
is located. R. S. 1894, § 4422. 

[Acts 1872, p. 12. In force December 27, 1872.] 

1278. Public square — School. — 1. Any town in this state laid off, 
platted and recorded, with streets, lanes, alleys, lots and a public 
square with no other public use expressed on such plat than ''public 
square" by the donor or grantor; and when the citizens of such town, 
by common consent of people, and the express consent of the grantor, 
have taken possession of said public square for educational purposes, 
and erected thereon lasting and valuable school buildings; and the 
citizens being desirous of retaining and occupying the same for edu- 
cational purposes, and that the same shall be dedicated to such use, 
may, by five or more freehold citizens of such town (or, if an incor- 
porated town, by her corporation) petition the board of county com- 
missioners for the proper county, giving a distinct description of the 
public square to be granted to the public for educational purposes; 
which petition shall be filed with the county auditor thirty days pre- 
vious to the sitting of such board; and notice of the pendency of said 
petition shall be given for the same space of time in a public news- 
paper printed in said county, if any there be, and by printed or written 
notices thereof, set up in three public places near the public square 
mentioned in the petition. R. S. 1894, § 4423. 

1279. Action by county board. — 2. If no opposition be made to 
such petition, the board of county commissioners may grant the prayer 
of petitioner or petitioners, as the case may be, and declare the same 



817 ANNEXATION OF TERRITORY. § 1280 

dedicated for educational purposes, in accordance with the petition, 
and to have the same effect as if said public square had been so marked 
and dedicated upon the original plat of such town. But if opposition 
be made before the board of county commissioners before final action 
had, such application shall be continued until the next term of the 
board, when, if the objector consent to such petition, or if two-thirds 
of all the real estate holders of the town petition therefor, the board 
shall grant the prayer of the petition. R. S. 1894, § 4424. 

ARTICLE 6.— ANNEXATION OF TERRITORY. 

SEC. SEC. 

1280. Of lots and out-lots. 1282. Duty of county board. 

1281. Of lands not platted. 1283. Lost plat. 

[Acts 1857, p. 73. In force March 5, 1857.] 

1280. Of lots and out-lots. — 48. When two-thirds of the owners 

of a tier of out-lots adjoining an incorporated town shall sign a peti- 
tion asking that the corporate limits of said town be extended so as to 
include said out-lots, the board of trustees of said town shall cause 
said petition to be recorded, and make an order that said tier of out- 
lots shall thereafter be included in and constitute a part of said corpo- 
ration. Whenever there shall be lots laid off and platted adjoining to 
or within such town, and a record of the same is made in the record- 
er's office of the proper county, the board of trustees may, by a reso- 
lution, extend the boundary of such town so as to include such lots, 
whether improved or not; and the lots thus annexed shall thereafter 
form a part of such town, and be within the jurisdiction of the same. 
A copy of such resolution, with plat or map of survey defining the 
metes and boundaries of such addition, shall be immediately filed and 
recorded in the office of the recorder aforesaid, and said tier of out- 
lots and said lots annexed, as last specified, shall be included in and 
constitute a part of said corporation, and the inhabitants residing 
thereon, and owners thereof, shall be subject to all the laws and regu- 
lations, and entitled to all the privileges of said corporation. R. S. 
1894, § 4425. 

See ante, § 1017, et seq. 

Platted territory.— Territory platted into lots can not be annexed by the board of 
commissioners, but such annexation must be made by the board of trustees of the town. 
Mullikin v. City of Bloomington, 72 Ind. 

[1 R. S. 1852, p. 482. In force May 6, 1853.] 

1281. Of lands not platted. — 51. When any town shall desire to 
annex contiguous territory thereto, not platted or recorded, the trust- 
ees shall present to the board of county commissioners a petition set- 
ting forth the reasons for such annexation, and shall accompany the 
same with a map or plat accurately describing, by metes and bounds, 
the territory proposed to be attached, which shall be verified by affida- 

ClT. AND To.— 52 



§ 1281 TOWNS. 818 

vit. Such trustees shall give thirty days' notice, by publication in a 
newspaper printed in such town, if any; otherwise in the county, or, 
if none, then by posting up such notice in five or more public places 
within the corporation. A copy of such notice shall be served^ on the 
owner or owners of such territory, if known and residents of the 
county. R. S. 1894, § 4426. 

Statutes construed— Annexation.— This section is not void for uncertainty, nor in- 
consistent with the previous section. It confers jurisdiction upon the board of conunis- 
sioners, upon petition of the trustees of the town, to order annexation to the town, of 
any adjacent territory not embraced in the provisions of the preceding section. Elston 
V. Crawfordsville, 20 Ind. 272. 

Contig'UOUS territory— Question of fact.— Whether territory is or is not contiguous 
to corporate limits is a question of fact for the decision of the board of commissioners. 
Town of Cicero v. Williamson, 91 Ind. 541. 

Notice — Jurisdiction. — As to persons not resident in the county, notice by publica- 
tion is sufficient, and it is not necessary to name in the notice each person owning 
parts of the territory sought to be annexed, if the territory is so described and identified 
as to give such persons notice that their interests are to be involved ; but service of per- 
sonal notice upon known residents of the county whose lands it is sought to annex is, 
as to them, necessary to give jurisdiction, and a failure to do so renders the proceeding 
void upon collateral attack. Woodfill v. Town of Greensburg, 18 Ind. 203; Elston v. 
Crawfordsville, 20 Ind. 272; Town of Cicero v. Williamson, 91 Ind. 541. 

Jurisdiction — Collateral attack. — The proceedings of the board of county commis- 
sioners annexing territory to an incorporated town, if jurisdiction was acquired, can not 
be questioned collaterally, but, if jurisdiction is not acquired, the proceeding may be 
collaterally attacked by injunction. If jurisdiction is acquired the remedy is by appeal. 
Town of Cicero v. WiUiamson, 91 Ind. 541; City of Delphi v. Startzman, 104 Ind. 343; 
Grusenmeyer v. City of Logansport, 76 Ind. 549, 556; City of Terre Haute v. Beach, 96 
Ind. 143; City of Logansport v. LaEose, 99 Ind. 117; Hiatt v. Town of Darlington, 
Ind. Sup. Ct., May 19, 1899. 

Petition — Collateral attack. — A^Hien the petition contains enough to show that the 
subject-matter is witliin the jurisdiction its sufficiency in other respects can not be 
questioned collaterally, nor can the formality of the proceedings of the trustees of the 
town. Town of Cicero v. Williamson, 91 Ind. 541, 542. 

Where an inferior tribunal is required to ascertain and decide upon facts essential to 
its jurisdiction its determination thereon is conclusive as against collateral attack. Mul- 
likin V. City of Bloomington, 72 Ind. 162; Hiatt v. Town of Darhngton, Ind. Sup. Ct., 
May 19, 1899. 

Taxes— Injunction— Parties. — AVhere several owners of lands unite in a complaint 
to enjoin an incorporated town from collecting taxes upon their lands, upon the ground 
that no notice at all was given of proceedings for annexation, there can be no separate 
decree in favor of one of the plaintiffs. Town of Cicero v. WiUiamson, 91 Ind. 541, 
545. 

Where a complaint to enjoin the collection of taxes assessed by an incorporated town 
upon lands alleged to have been illegally annexed thereto, alleged that such annexation 
was made by the order of the board of county commissioners, of territory laid out in 
lots, and plat thereof recorded, but failed to show that the officers of such town did 
not also adopt a resolution annexing such territory, such complaint is insufficient on 
demurrer. MuUikin v. City of Bloomington, 72 Ind. 161. 

An allegation in such complaint, that the board of trustees of such town had not 
adopted a resolution annexing such territory prior to the petition to the board of com- 
missioners, is not sufficient to show that none was adopted prior to the assessment of 
the tax complained of. Mullikin v. City of Bloomington, 72 Ind. 161. 

Lands laid out in lots— Jurisdiction.— Where territory sought to be annexed to a 



819 ANNEXATION OF TERRITORY. § 1282 

town is laid out in lots, the board of county commissioners have no jurisdiction to 
authorize such an annexation; it must be made by resolution of the town authorities. 
Mullikin v. City of Bloomington, 72 Ind. 161. 

Petition— Eeason for annexation.— The statute does not prescribe what reasons for 
annexation shall be set forth in the petition, and that question, therefore, is neces- 
sarily left to the somid discretion of the authority passing on the same. Windfall, etc., 
Co. V. Emery, 142 Ind. 456; Catterlin v. City of Frankfort, 87 Ind. 45; Elston v. Craw- 
fordsville, 20 Ind. 272 ; Chandler v. City of Kokomo, 137 Ind. 295. 

The reasons for the proposed annexation of territory should be stated in the appli- 
cation therefor, and the map or plat accompanying the same should be verified, but the 
application need not be. As to what reasons are sufficient, see opinion. Elston v. 
Crawfordsville, 20 Ind. 272. 

A petition is sufficient which shows that many persons in the territory sought to be 
annexed have been receiving the benefits and advantages of the town, without bearing 
their share of its burdens, and that public interests require that said territory be an- 
nexed, and that it is just and equitable, and for the public good, that the petition be 
granted. Paul v. Town of Walkerton, 150 Ind. 565. 

Same— Sufficiency of reasons not reviewable on appeal.— The sufficiency of the 
reasons stated in a petition for the annexation of territory to a town can not be consid- 
ered upon an appeal, at least in the absence of a plain abuse of the discretion necessar- 
ily vested in the county board of commissioners, by the omission of the statute to pre- 
scribe what reasons shall be set forth. Windfall Mfg. Co. v. Emerj'-, 142 Ind. 456. 

Annexation of territory— Evidence— Remonstrant— Use of streets— School chil- 
dren. — In a proceeding under this statute for the annexation of territory to a tovv^n, it 
may be shown that the office of the remonstrant is within the town, that the streets of 
the town are used for the distribution of the products manufactured by him within the 
territory in question, that other factories in the same territory are in prospect, and that 
children residing in such territory attend schools in the town. Windfall Mfg. Co. v. 
Emery, 142 Ind. 456. 

1282. Duty of connty board,— -52. The board of county commis- 
sioners, upon the reception of such petition, shall consider the same, 
and shall hear the testimony offered for or against such annexation; 
and if, after inspection of the map, and the testimony being heard, 
such board is of the opinion that the prayer of such petition should 
be granted, it shall cause an entry to be made on the order-book, speci- 
fying the territory annexed, with the boundaries thereof according to 
the survey; which entry, or an attested copy thereof, shall be conclu- 
sive evidence, in all courts, of such annexation. R. S. 1894, § 4427. 

Appeal. — An appeal lies from an order of the board of county commissioners annex- 
ing territory to a town or city. For cases overruled, see Grusenmeyer v. City of Logans- 
port, 76 Ind. 549; City of Logansport v. La Kose, 99 Ind. 117. See ante, § 1033 and 
notes. 

The action of the board of county commissioners upon a petition filed for annexation 
is judicial in its character, and the legislature may provide for an appeal from such pro- 
ceedings. Forsythe v. City of Hammond, 142 Ind. 605 ; Forsythe v. City of Hammond, 
166 U. S. 506. 

[Acts 1869 S., p. 33. In force April 27, 1869.] 

1283. Lost plat. — 11. When the original survey and plat of an}'' 
incorporated town of this state have been, or may hereafter be, lost or 
destroyed, the board of trustees of such town may order a survey and 



§ 1284 TOWNS. 820 

plat of said town to be made. And when such survey and plat is 
made, and adopted by a majority of said board of trustees, the same 
shall be presented to the board of commissioners of said county, w4th 
an affidavit that the original survey and plat are lost; whereupon the 
said board of commissioners shall order the same to be recorded by 
the recorder of said county as the survey and plat of such town. R. 
S. 1894, § 4428. 

AETICLE 7.— SEWEES. 

SEC. SEC. 

1284. Power over sewers. 1291. Penalty for non-payment. 

1285. Proceedings to establish and con- 1292. Payment, how enforced. 

struct. 1293. Officers' fees. 

1286. Order to appraisers. 1294. Superintendent — Engineer. 

1287. Majority may act. 1295. Town may pay part of cost. 

1288. Schedule filed— Construction. 1296. Terms of letting. 

1289. Apportionment of cost. 1297. Protection of sewer — Tapping. 

1290. Collection of cost. 1298. Intention of act. 

[Acts 1867, p. 205. In force March 11, 1867.] 

1284. Power over sewers. — 1. The board of trustees of any incor- 
porated town in this state shall have full power and authority to con- 
struct and repair any sewer along any street or alley in any incorporated 
town in this state, or along any part of a street, block, or square in any 
incorporated town in this state; and they shall be the sole judges of 
the necessity and utility of the construction of such sewer. R. S. 
1894, § 4429. 

See Cities and Towns, ante, §§ 1090 and 1107, and notes ; also, Cities, ante, § 124, clauses' 
26 and 43, and ante, § 127, and notes. 

Notice— Constitutional law, — This act is not void for failure to provide for notice to 
the property owner aSected or assessed for benefits. Kizer v. Town of Winchester, 
141 lUd. 694. 

Liability of town.— If a drain is established under the direction of the circuit court, 
the same extending through the town, but the town having nothing to do with its con- 
struction, and never having repaired it or drained into it, the town can not be held 
liable for injuries resulting from a defect in such drain. Town of Monticello v. Fox, 3 
App. 481. 

Same— Neglig'ence in construction— Contributory neglig'ence.— If a municipality 
so negligently construct a sewer that it overflows the basement room of a house, the 
municipality is liable in damages, unless the party whose property is injured is himself 
guilty of contributory negligence in the construction of the building. City of Valparaiso 
v. Eamsey, 11 App. 215; Town of Princeton v. Gieske, 93 Ind. 102. 

Same -Consequential damag*es— Unskillful plan and construction.— Municipal 
corporations are not responsible for consequential injuries resulting from the building 
of sewers and the improvement of streets, where the work is done in a careful and skill- 
ful manner ; nor is the corporation liable for mere errors of judgment as to the plan of 
a public improvement, but is responsible for negligence in devising the plan of an im- 
provement as well as for negligence in executing the work. City of North Vernon v. 
Voegler, 103 Ind. 314; City of Evansville v. Decker, 84 Ind. 325; Town of Princeton v. 
Gieske, 93 Ind. 102 ; City of Peru v. Brown, 10 App. 597 ; City of Terre Haute v. Hud- 
nut, 112 Ind. 642 ; City of New Albany v. Ray, 3 App. 321 ; City of Valparaiso v. Adams, 
123 Ind. 250; Elhott Roads and Streets, p. 336, 



821 SEWERS. § 1285 

Rt^liauce on promise to repair— Contributory negligrence.— The fact that the cor- 
poration promised to repair a defect in a sewer, and the rehance of the property owner 
on such promise, will not relieve the property owner from the effect of contributory 
negligence on account of defects in the construction of a building or the arrangement 
of the premises, during the time of such reliance. City of Valparaiso v. Eamsey, 11 
App. 215. 

1285. Proceedings to establish and construct. — 2. Whenever the 
board of trustees of any incorporated town in this state shall determine 
to construct any sewer authorized by this act, such board of trustees 
shall, upon their records, specify and determine the place of begin- 
ning and termination of such sewer, its route, course, and distance, 
and shall also determine and specify, in their said records, the depth 
below the grade at which such sewer shall be sunk, the size or diame- 
ter of the same, and of what materials the same shall be constructed. 
And thereupon such board of trustees shall appoint three appraisers, 
freeholders and voters in said town, not in any way interested in the 
proposed sewer, whose duty it shall be to examine all the in-lots, out- 
lots, and parts of in-lots and parts of out-lots in said town, that would 
in any manner be benefited by the construction of the proposed sewer; 
and shall assess the amount of benefits to each lot or parts of lots, that 
will result thereto by the construction of such sewer. And said ap- 
praisers shall make out a schedule of said lots or parts of lots, with 
the said appraisement thereto; and shall append to such schedule 
their affidavit that the said assessment is, in all respects, a true and 
impartial assessment of the benefits resulting to each lot and part of lot 
in any way benefited by the said proposed sewer, according to the best 
of their judgment. And the said appraisers shall file said schedule 
with the clerk of the board of trustees of such town, who shall record 
the same in the records of said board of trustees; and from and after 
the recording of said schedule above directed, the assessments therein 
made shall be a lien upon the lots and parts of lots, respectively, 
against which they are made, to be in no manner divested onlv as 
hereinafter provided. R. S. 1894, § 4430. 

Appraisers— Presumption as to discharg-e of duties.— In actions to enforce sewer 
assessment liens it will be presumed that the appraisers discharged the duties enjoined 
upon them by statute and assessed benefits to each and all lots and parts of lots bene- 
fited by the proposed work. Kizer v. Town of Winchester, 141 Ind. 694. 

1286. Order to appraisers. — 3. Before said appraisers shall pro- 
ceed to discharge their duties as in the preceding section, said board 
of trustees shall cause to be issued to them a certified copy of their 
order, giving the commencement, termination, distance, route, depth 
below the grade, and the materials of which such sewer is to be con- 
structed, and of their appointment. R. S. 1894, § 4431. 

1287. Majority may act.— 4. The majority of said appraisers shall 
be competent to act; and two of them concurring in the same proposi- 
tion, such concurrence shall be taken as the decision of said apprais- 
ers on such proposition. R. S. 1894, § 4432. 



§1288 TOWNS. 822 

1288. Schedule filed — Construction. — 5. As soon as the said 
schedule of assessment, made by the said appraisers, is returned and 
recorded in the records of said board of trustees, such board of trust- 
ees shall proceed and cause the said sewer to be constructed in accord- 
ance with their previous plans and specifications, as near as can be 
done, making such alterations from the original plan, only, as the 
necessity of the case or the better construction of the work may seem 
to require. R. S. 1894, § 4433. 

1289. Apportionment of cost. — =6. As soon as the board of trustees 
ascertain the cost of the construction of such sewer, they shall make a 
division of the cost of said sewer among the owners of said lots and 
parts of lots so assessed for the construction of such sewer; and as the 
whole amount of assessment made for the construction of said sewer is 
to the whole cost of construction of such sewer, so shall the lots and 
parts of lots owned by each individual be to the amount each individ- 
ual shall pay upon each lot or part of lot so owned by him for the 
construction of said sewer. And the said board of trustees shall cause 
a list of the owners' names of said lots or parts of lots, with the de- 
scription of said lots attached thereto, and append the amount in dol- 
lars and cents so found as being the share properly chargeable against 
each lot and part of lot so owned by any one person, to be made out 
by the clerk of said board of trustees, and cause it to be recorded in 
the records of the said board of trustees of such town. R. S. 1894, 
§ 4434. 

1290. Collection of cost. — 7. The clerk of the board of trustees of 
said town shall make out, under his hand and the seal of said town, a 
certified copy of said list, showing the amount chargeable against each 
lot or part of lot in said town, and deliver the same to the treasurer of 
said town, which shall be full authority for him to receive and collect 
the amount specified in said list; and the said treasurer of said town 
shall have full power and authority for collecting such sums, and is 
vested with all the power and authority in the collection of the same 
that the marshal of such town has in the collection of taxes levied by 
said town, and shall be governed by the same rules and regulations, so 
far as applicable, that county treasurers are in collecting -taxes in this 
state. And the owners of said lots or parts of lots shall have sixty days 
from the time such list is placed in the hands of such treasurer, within 
which they may pay the same without cost. Such treasurer as soon 
as he receives such list from the clerk of said town, shall cause notice 
to be given thereof, either by publication of such list in a weekly news- 
paper printed in said town, or by posting up three copies of said list 
in three public places in said town. R. S. 1894, § 4435. 

1291. Penalty for non-payment,— 8. At the expiration of sixty 
days from the time such list is placed in the hands of the said treas- 
urer, he shall add thereto 10 per cent, on the amount so charged 
against each lot and part of lot remaining at that date, which shall be 
collected as a penalty for non-payment within the sixty days; and 



823 SEWERS. § 1292 

from that date there shall be charged 6 per cent, interest on all re- 
maining unpaid. R. S. 1894, § 4436. 

1292. Payment, how enforced. — 9. The same lien created by this 
act on the said lots or parts of lots by the assessment shall be in favor 
of the said town in which such lots are situated, and the same may be 
enforced by an action in the name of the town in any court of compe- 
tent jurisdiction; and in such action the presumption of law shall be 
that all the provisions of this act have been complied with; and the 
only defense that the defendant shall be allowed to set up in said ac- 
tion shall be that he has paid the amount with which said lots or parts 
of lots are charged, and that said lots or parts of lots are not benefited 
to the amount assessed against the same. R. S. 1894, § 4437. 

Enforcement of assessment— Constitutional law.— This statute is not void for fail- 
ure to provide for notice to the property owner affected or assessed for benefits. The 
action to enforce the assessment can only be commenced in pursuance of a notice to 
the owner of the pendency thereof, and in a court in which an ample opportunity is 
afforded to the defendant to be heard in any of the defenses allowed by the statute. 
The statute in no way tends to deprive him of his property without due course or pro- 
cess of law, Kizer v. Town of Winchester, 141 Ind. 694; Garvin v. Daussman, 114 Ind. 
429; Johnson, etc., v. Lewis, 115 Ind. 490; McEneney v. Town of Sullivan, 125 Ind. 
407; Barber, etc., Co. v. Edgerton, 125 Ind. 455. 

1293. Officers' fees, — 10. The cost of appraisers and town officers 
in the collection of said funds for building said sewer, and in making 
provisions for building the same, shall be paid out of the treasury of 
said town as other fees. R. S. 1894, § 4438 

1294. Superintendent — Engineer. — 11. The sewers constructed 
under this act shall be done under the direction of the board of trust- 
ees, and to their satisfaction and acceptance, and they may appoint 
an agent to oversee the same, and also employ an engineer to lay off 
and make specifications and plans of the work. R. S. 1894, § 4439. 

1295. Town may pay part of cost. — 12. The board of trustees shall 
have a power to pay a part of the construction of said sewer out of the 
general funds or treasury of said town, w^hen, in their judgment, the 
same would be fair and equitable, and when they so determine, they 
shall order and specify what part of the construction of said sewer 
shall be paid out of the general funds of such town, before making the 
pro rata dividend upon said assessment on said lots or parts of lots to 
be benefited; and shall, in that case, take into consideration, in mak- 
ing said pro rata dividend, the amount to be paid out of the general 
funds of said town, and making said amount to be paid by the owners 
of the lots and parts of lots less the amount paid out of the general 
funds of said town. R. S. 1894, § 4440. 

1296. Terms of letting. — 13. In letting the said work, the said 
trustees shall specify and agree with the contractor, as to the time and 
manner of payment therefor. R. S. 1894, § 4441. 

1297. Protection of sewer — Tapping. — 14. The board of trustees 
of such town shall, by an ordinance, provide for the protection of said 
sewer and the manner and terms that any person or persons may tap, 



§1298 



TOWNS. 



824 



open or intersect said sewer; and no person shall be allowed to tap, 
open or intersect, or in any manner interfere with the same, without 
first procuring a permit from said board of trustees. R. S. 1894, 
§ 4442. 

Tapping' sewer— Liability of town — Neg-lig'ence.— A municipal corporation is liable 
to one who, by its invitation or permission, for his private benefit, connects his premi- 
ses with a sewer constructed by the corporation, and is injured by the back flow of 
water into his premises, resulting from the negligent construction of the sewer or the 
negligent failure of the corporation to keep it in repair and free from obstruction ; but 
the corporation is not liable where the owner of the premises has voluntarily tapped the 
public sewer, and made the connection therewith without invitation or authority. 
Town of Monticello v. Fox, 3 App. 489; City of Ft. Wayne v. Coombs, 107 Ind. 75. 

1298. Intention of act. — 15. It is not the intention of this act to 
take away the power that the board of trustees of incorporated towns 
now have, by law, to build sewers and pay for the same out of the 
general funds, of such town, but the intention is to create an addi- 
tional means for construction of sewers, whereby those most benefited 
by their construction will pay most therefor. R. S. 1894, § 4443. 

ARTICLE 8.— TOWN BUILDING. 



1299. May be incorporated. 

1300. Notice. 

1301. Written statement. 

1302. Statement to be recorded. 

1303. Twenty may organize. 



SEC. 

1304. When incorporated. 

1305. Powers. 

1306. Records — Evidence. 

1307. Trustees may convey. 



[Acts 1858 S., p. 26. In force December 22, 1858.] 

1299. May be incorporated. — 1. Where any persons may have 
heretofore associated themselves together for the purpose of building 
a town within any county in this state, they may be incorporated as 
hereinafter provided. R. S. 1894, § 4574. 

1300. Notice. — 2. Notice of the intention to organize such cor- 
poration, and of the time and place of holding the first meeting, 
signed by one or more persons, shall be published in some newspaper 
of the county where such town has been located; or, if none, then in 
some newspaper of an adjoining count}^, for at least twenty-one days 
before such meeting is held. R. S. 1894, § 4575. 

1301. Written statement, — 3. At such first meeting, a temporary 
or permanent presiding officer and secretary shall be selected, and a 
written statement prepared specifying the object of such association, 
its name, and the time and manner of giving such notice, to be signed 
by such presiding officer and secretary. R. S. 1894, § 4576. 

1302. Statement to be recorded. — 4. Such statement and a copy 
of such published notice shall be filed in the office of the recorder of 
such county, and by him shall be recorded in the record of deeds, for 
which he shall be entitled to a fee of two dollars. R. S. 1894, § 4577. 

1303. Twenty may organize. — 5. It shall not be necessary for a 



825 TOWN BUILDING. § 1304 

majority of the members of such association to be present at such first 
meeting, but any twenty or more shall be sufficient to hold the meet- 
ing and organize the corporation. R. S. 1894, § 4578. 

1304. When incorporated. — 6. From the time of filing such state- 
ment as aforesaid, such association shall be deemed and held a body 
corporate and politic by the name selected as aforesaid, with full pow- 
ers to sue and be sued, contract and be contracted with, have a com- 
mon seal, make laws for their own government, and may exercise all 
such other powers as are incident to corporations, for the purpose of 
carrying into effect the object of their association. R. S. 1894, § 4579. 

1305. Powers. — 7. Such corporation may acquire, by purchase 
or otherwise, real estate, and may hold and convey the same, or any 
part thereof, in such manner as it may see fit; but nothing herein 
contained shall be so construed as to exempt such lands from taxation 
as other lands are taxed. R. S. 1894, § 4580. 

1306. Records — Evidence. — 8. Such corporation shall keep a rec- 
ord of its proceedings; and such record or copies thereof, duly attested 
by its clerk or secretary, may be read in evidence in all suits at law 
where the interests of such corporation are concerned. R. S. 1894, 
§ 4581. 

1307. Trustees may convey. — 9. Wherever any persons have as- 
sociated for the purpose aforesaid, and have purchased real estate 
prior to the passage of this act, and have taken deeds to one or more 
persons in trust for such association, and such association shall here- 
after become incorporated under the provisions of this act, then such 
trustees may and shall convey to such corporation all such real estate, 
and shall assign to such corporation all such title-bonds as may have 
been executed to them in trust for such association; and such convey- 
ance and assignment shall pass as good and perfect a title to such 
corporation for such lands as if such association had been incorporated 
at the date of the execution of such deeds and said deeds had been 
executed to the corporation. R. S. 1894, § 4582. 



CHAPTER 8. 
MISCELLANEOUS STATUTES AND PROVISIONS, 



s.m 


<^ 


ARl 


. 


1. 


Highways — Steeets. 


7. 


Prisons— Police matron — 


2. 


Railroads. 




property. 


3. 


Street railways. 


8. 


Protection from fire. 


4. 


Gas and water companies. 


9. 


Firemen's pension fund. 


5. 


Telephone companies. 


10. 


Policemen's pension fund. 


6. 


Crimes and misdemeanors. 


11. 


Education. 






12. 


Libraries. 



Stolen 



Under the title of this chapter have been grouped certain statutes and provisions 
having some relation to municipal affairs, but which are not incorporating acts, nor 
acts amendatory thereof, nor supplemental thereto. Neither the limits nor the scope of 
this work permits a full compilation of statutes of this character, though some of these 
it has been deemed advisable and proper to set forth in full ; and, where they are not, 
and the subject of the statute from which the provisions are taken bears any close rela- 
tion to municipal law, reference is made to the full text as found in Burns' Eevised 
Statutes, 1894, and Bums' Supplement, 1897, where full annotations of the decisions 
are made. 

ARTICLE 1.— HIGHWAYS— STREETS. 



sec. 

1308. Notice and duty of viewers — High- 

way on boundary line of city or 
town. 

1309. Petition by abutting owners. 

1310. Action on petition. 



1311. Power of petitioners. 

1312. Exemption from work on highways. 

1313. Incorporated towns. 

1314. Towns and cities — Residents exempt. 

1315. Cities may pay. 



Hig-hways.— R. S. 1894, ch. 76 (§§6726-6959); Burns' Supp. 1897, ch. 76 (§§6726- 
6957). 

See chapter note preceding this article. 

1308. Notice and duty of yiewers — Highway on boundary line of 
city or town. — 16. The auditor of such county shall issue a precept 
to the sheriff thereof, commanding him to notify such viewers of the 
time, place and object of their meeting, such viewers, at such time, 
after having taken an oath, before some officer authorized to adminis- 
ter oaths, to faithfully perform their duties, shall proceed to view the 
highway to be located, or the change proposed, and if they shall 
deem the highway to be located, or the change to be made of public 
utility, they shall lay out and mark the same on the best ground, not 
running through any person's enclosure of one year's standing with- 

(826) 



827 HIGHWAYS STREETS. § 1309 

out the owner's consent, unless, upon examination, a good way can 
not otherwise be had, without departing essentially from the route pe- 
titioned for: Provided, That where the road is laid out upon the line 
dividing the land of two individuals, each shall give half the road: 
And provided, further, That whenever the location of a highway is pe- 
titioned for upon and along any line, which forms also the boundary 
or corporate limits of any incorporated city or town, the county com- 
missioners shall, for the purpose of locating such highway, have ju- 
risdiction over the lands and lots lying within such corporate limits, 
and immediately affected by such proceedings and location; and the 
owners of such lands and lots so affected, shall have the same rights 
and remedies in the matter of the locating of such highway as the 
owners of the lands lying on the opposite side of said highway and 
outside of said incorporated city or town. [As amended, Acts 1899, 
p. 116. In force February 24, 1899.] 

Jurisdiction of county commissioners. — Boards of county commissioners have orig- 
inal and exclusive jurisdiction of the location and establishment of all highways of 
their counties not within the limits of municipal corporations. Rassier v. Grimmer, 
130 Ind. 219; Chicago, etc., R. Co. v. Sutton, 130 Ind. 405; Gold v. Pittsburg, etc., R. 
Co., Ind. Sup. Ct., March 28, 1899. 

The county commissioners have no authority to locate or open a highway within the 
limits of an incorporated town without the consent of the board of trustees. Sparling, 
etc., V. Dwenger, 60 Ind. 72; Tucker v. Conrad, 103 Ind. 349; Chicago, etc., R. Co. v. 
Sutton, 130 Ind. 405. 

Road supervisors have no authority over the streets of a town. State v. Mainey, 65 
Ind. 404. 

[Acts 1881 S., p. 542. In force September 19, 1881.] 

1309. Petition by abutting owners. — 1. Owners of real estate 
abutting upon any street, alley or highway in this state may petition 
the proper authorities of the town or city, or the board of county 
commissioners of the county where the street, alley or highway may 
be located, to grant right of way for the improvement of such street, 
alley or highway. R. S. 1894, § 6767. 

1310. Action on petition. — 2. When such petition has been signed 
by persons of lawful age who are the owners in fee-simple of more 
than half the real estate abutting upon any street, alley or highway 
in this state (if the petitioners are also a majority of those who own 
such real estate), it shall be the duty of the proper officers of the 
town or city where such street or alley may be situated, or of the board 
of county commissioners of such county where such highway may be 
located, to grant right of way for such improvement. R. S. 1894, 
§ 6768. 

1311. Power of petitioners. — 3. When right of way has been 
granted for the improvement of any street or alley, the persons who 
have signed the petition for such improvement may proceed, under 
the supervision of a competent civil engineer, to be employed by the 
town or city where the same is located, to grade and pave or gravel 
such street or alley. R. S. 1894, § 6709. 

1312. Exemption from work on highways. — 9. On application to 



§ 1313 MISCELLANEOUS STATUTES AND PROVISIONS. 828 

the township trustee any person liable to work on highways may be 
exempt therefrom if it be shown that he is unable from bodily infirm- 
ities to work thereon and that he is too poor to pay the commutation 
therefor; also any person who is a bona fide member of a legally or- 
ganized fire company, organized and located in any incorporated city 
or town in this state. And in such cases the township trustee shall 
execute to such person a certificate thereof, which shall, on being pre- 
sented to the supervisor entitle him to such exemption. [As amended, 
Acts 1895, p. 178. In force March 9, 1895.] Burns' Supp. 1897, 
§ 6823. 

See ante, §§ 260, 1152. 

Statute construed. — It is only the members of a fire company organized by the town 
board, and under its control, that are entitled to exemption from work upon the high- 
ways of the town. Leedy v. Town of Bourbon, 12 App. 486. 

Mandamus. — If the township trustee improperly refuses to give a person entitled 
thereto a certificate showing his exemption, the trustee may be compelled by a mandate 
to issue such certificate. State v. Porter, 134 Ind. 63. 

To entitle a person to a certificate showing that he is exempt from liability to work 
on highways on account of such person being a member of a legally organized fire com- 
pany, it must be shown that all the steps required by statute to organize such company 
have been performed. Porter v. State, 141 Ind. 488. 

Exemption from labor— Township trustee. — Exemption from labor on highways is 
to be determined exclusively by the township trustee ; the ground merely, on which he 
might exempt a person from road work, is insufficient to constitute a defense to an ac- 
tion for a failure to perform such work. Winfield Tp. v. Wise, 73 Ind. 71. 

Certificate. — The certificate is a good defense to a suit for failure to perform labor 
unless it is shown that such certificate is false. Shideler v. Clinton Tp., 23 Ind. 479, 

[Acts 1883, p. 62. In force March 2, 1883.] 

1313. Incorporated towns. — 36. For the purpose of working and 
keeping the streets, alleys and roads within the limits of incorporated 
towns in repair and good condition, and for raising money and apply- 
ing the same thereon, the boards of trustees of such towns are hereby 
invested with the same power, and are required to perform similar 
duties within their respective towns, as are given by this act to town- 
ship trustees. And town marshals are hereby invested with the same 
power, and are required to perform similar duties, as are by this act 
given to road supervisors, to be exercised within their respective 
towns. R. S. 1894, § 6850. 

1314:. Towns and cities — Residents exempt.— 38. Residents of 
towns and cities subject to road work shall not be subject to the pro- 
visions of this act, except that the respective boards of trustees of 
towns and the common councils of cities may require them to work 
within the corporate limits of their respective towns and cities, and 
tax levies to be made under the provisions of this act by township 
trustees shall not apply to or affect any property within the corporate 
limits of any city or town, and any tax levy to be made under this 
act by the board of town trustees, shall not apply to any property out- 
side of such towns. This act shall not affect any existing law which 



829 RAILROADS. § 1315 

authorizes cities and towns to raise money and make application 
thereof upon the streets and alleys thereof, and cities and towns shall 
have the same power and authority over its streets and alleys as if 
this act had not been passed. R. S. 1894, § 6852. 

1315. Cities may pay. — 17. When any road to be improved under 
and by virtue of this act begins or terminates in any city or incorpo- 
rated town, the corporate authorities of such city or town may, upon 
the recommendation of the board of commissioners, agree to pay, in 
the bonds of such city or town, an amount not exceeding one-fifth of 
the entire cost of said road in addition to any amount that may be as- 
sessed upon the real estate of such city or town by virtue of the pro- 
visions of this act: Provided, That the entire tax to be imposed for 
road purposes by virtue of this section shall not in any one year ex- 
ceed fifty cents on the one hundred dollars of taxable values of such 
city or town. R. S. 1894, § 6896. 

ARTICLE 2.— RAILROADS. 

SEC. SEC. 

1316. Railroad street crossing — Grading. 1323. Union railway company. 

1317. Failure to obey notice — Penalty. 1324. Certificate of incorporation. 

1318. Action to recover penalties. 1325. How signed and attested. 

1319. Disposition of penalties. 1326. Rights as owner or lessee. 

1320. Work may be done at expense of 1327. Powers. 

company. 1328. Condemnations. 

1321. Public use of railroad right of way 1329. Streets and alleys — How vacated. 

and depot grounds — Effect. 1330. Liabilities. 

1322. Union roads. 1331. Lights at street crossings. 

Railroads— Org-anization.—R. S. 1894, ch.40 (§§5134-5280) ; Burns' Supp. 1097, ch. 
40 (§§5153-5257). 

Railroads— After org-anization.- R. S. 1894, ch. 41 {§§5281-5405); Burns' Supp. 
1897, ch. 41 (§§5307-5357). 

See chapter note preceding § 1308, ante. 

[Acts 1895, p. 233. In force March 11, 1895.] 

1316. Railroad street crossing — Grading. — 1. That it shall be the 
duty of each railroad company whose road or tracks cross, or shall 
hereafter cross, any street, avenue or alley in any incorporated town 
or city in the state of Indiana; which said street, avenue or alley has 
been, or shall hereafter be, by addition, plat or otherwise, dedicated 
to the public use, to properly grade and plank or gravel its said road 
and tracks at its intersection with and crossing of said street, avenue 
or alley in accordance with the grade of said street or avenue, in such 
manner as to afford security for life and property at said intersection 
and crossing. Burns' Supp. 1897, § 5172a. 

See ante, § 218, note. Railroads — Street Railways; see also ante, § 126, notes. 

1317. Failure to obey notice — Penalty. — 2. Every such railroad 
company which fails or neglects to comply with the provisions of the 



§ 1318 MISCELLANEOUS STATUTES AND PROVISIONS. 830 

preceding section after thirty days' written notice by the authorities 
of such city or town shall be served on such railroad company shall 
be held liable therefor to the state of Indiana in a penalty of not less 
than twenty dollars nor more than fifty dollars, to be recovered in a 
civil action at the suit of said state, in the circuit or superior court of 
any county in which said crossing may be located. Burns' Supp. 
1897, § 51726. 

1318. Action to recover penalties. — 3. All actions for the recovery 
of. the penalties prescribed in the preceding section shall be prosecuted 
in the name of the state of Indiana by the prosecuting attorney of any 
county, when such failure or neglect as aforesaid may occur; and such 
prosecuting attorney shall be entitled to recover and receive for his 
services in such cases, as a docket fee, ten dollars in each case, to be 
taxed as part of the costs in such cases. Burns' Supp. 1897, § 5172c. 

1319. Disposition of penalties. — 4. All penalties collected under 
the provisions of this act shall, by the clerk of the court where as- 
sessed and recovered, be paid over to the treasurer of the county in 
which said suit was instituted for the benefit of the common school 
fund of the state. Burns' Supp. 1897, § 5172d. 

1320. Work may be done at expense of company. — 5. Should any 
such railroad company fail or neglect to comply with the provisions 
of section 1 of this act within the time prescribed in the notice herein- 
before provided for then said town or city may have said work done 
at said crossing and intersection in the manner prescribed in said sec- 
tion, and recover the amount of the cost and expenses thereof, includ- 
ing reasonable attorney fees, from said railroad company by suit in 
any court of competent jurisdiction. Burns' Supp. 1897, § 5172e. 

Maintenance of street crossing". — Where a railroad company crosses a street or 
highway with its track, the company must maintain the street or highway in a reasona- 
bly safe condition for the use of the public. Pennsylvania Co. v. Frund, 4 App. 469; 
Evansville, etc., E,. Co. v. Carvener, 113 Ind. 51; Louisville, etc., R. Co. v. Smith, 91 
Ind. 119; Delzell v. Indianapolis, etc., R. Co., 32 Ind. 45; Indiana, etc., R. Co. v. Barn- 
hart, 115 Ind. 399; Terre Haute, etc., R. Co. v. Clem, 123 Ind. 15; Evansville, etc., 
R. Co. V. Crist, 116 Ind. 446; Louisville, etc., R. Co. v. Pritchard, 131 Ind. 564; Ohio, 
etc., R. Co. V. Trowbridge, 126 Ind. 391; Seybold v. Terre Haute, etc., R. Co., 18 App. 
367 ; EUiott Railroads, § 1092. 

Approaches— Company's duty— Joint liability of company and city.— The ap- 
proaches to the part of the street and sidewalk crossing the track and right of w^ay are 
a part of the crossing, and it is incumbent upon the company to place and maintain the 
approaches, as well as the crossing, in a condition reasonably calculated, in contem- 
plation of the surrounding circumstances, to insure the safety of persons passing over 
the track and upon the street and sidewalk at the crossing. That it is the duty of the 
city, in such case, to provide and maintain a reasonably safe street and sidewalk, can 
not relieve the railroad company. The general rule in such case is that both are pri- 
marily liable. Cincinnati, etc., R. Co. v. Claire, 6 App. 390. 

Street and railroad crossing's. — A railroad company is required by statute to con- 
struct crossings over its tracks where the same cross the streets of an incorporated 
town, and the failure of a town to enact an ordinance requiring a railroad company to 
construct such crossing will not relieve the company of such duty. This duty is im- 
posed by statute, but exists also independent of any statute. Evansville, etc., R. Co. 



831 RAILROADS. § 1321 

V. State, 149 Ind. 276; Indianapolis, etc., E.. Co. v. State, 37 Ind. 489; 3 Elliott on 
Railroads, §§ 1092, 1102. 

The duty of a railroad to construct street crossings over its tracks is the same whether 
the street or highway was open before or after the railroad was built. Evansville, etc., 
R. Co. V. State, 149 Ind. 276. 

Railroad crossing— Contributory negligence— Presumption. — A person approach- 
ing upon a street or highway a railroad crossing known by him to be dangerous must 
exercise care in proportion to the danger to be avoided. He must use his senses, must 
listen for signals or the noise of approaching trains, must observe signs put up as warn- 
ings, and look for trains where there is a vieAV of the track ; if he is injured at the 
crossing, the fault is prima facie his own, and he must show affirmatively that his own 
negligence did not contribute to the injury; and in approaching a crossing, he must 
assume that there is danger and act with ordinary care and prudence on that as- 
sumptfon. Hancock v. Lake Erie, etc., R. Co., 21 App. 10; Chicago, etc., R. Co. 
V. Hedges, 118 Ind. 5; Ohio, etc., R. Co. v. Hill, 117 Ind. 56; Louisville, etc., 
R. Co. V. Stommel, 126 Ind. 35; Smith v. Wabash R. Co., 141 Ind. 92; Cincinnati, etc., 
R. Co. V. Duncan, 143 Ind. 524; Pennsylvania Co. v. Meyers, 136 Ind. 242. But the 
rule that the plaintiff must allege and prove absence of contributory negligence has now 
been changed by statute, negligence of the plaintiff being made matter of defense prov- 
able under the general denial. See Acts 1899, p. 58. 

3Iandate. — Railroad companies may be compelled by mandate to make their tracks 
conform to the grade of a street, and to make highway crossings safe and convenient, 
and to restore the highway over which it crosses to its former state of usefulness. In- 
dianapolis, etc., R. Co. V. State, 37 Ind. 489; Cummins, etc., v. Evansville, etc., R. Co., 
115 Ind. 417; Clawson, etc., V. Chicago, etc., R. Co., 95 Ind. 152; Elliott Railroads, 
§ 698, notes and cases, and § 1106. 

Complaint — Demand. — A complaint against a railroad company by an incorporated 
town to require it to construct street crossings across its tracks which alleges the refusal 
of such company to construct the crossings, need not allege a demand upon the part of 
the town. Evansville, etc., R. Co. v. State, 149 Ind. 276. 

Dedication— Street and railroad crossings.— Where, by platted additions to a town, 
streets are dedicated to the public which cross a railroad track, and the railroad com- 
pany constructed crossings over its track, and such streets and crossings were used by 
the public for general use as a public highway for six or seven years, the public ac- 
quired such rights therein as could not be divested by the railroad company tearing 
up the approach and crossing. Evansville, etc., R. Co. v. State, 149 Ind. 276. 

[Acts 1899, p. 477. In force April 27, 1899.] 

1321. Public use of railroad right of way and depot grounds — Effect. 

— 1. That the use by the public [of the] right of way or depot grounds 
of any railroad in this state by riding, driving or walking thereon, 
shall not ripen into a right to continue to do so even though it has 
been so used for a period of twenty years or more; nor shall such u-e 
be evidence of a grant to do so except where such use is made across 
such ground to connect a street or highway on each side thereof, and 
except where a court of competent jurisdiction has adjudged the exist- 
ence of a street or highway. 

[1 R. S. 1852, p. 421. In force May 6, 1853.] 

1322, Union roads. — 1. It shall be lawful for two or more rail- 
road companies, running railroads to the same town or city, to locate. 



§ 1323 MISCELLANEOUS STATUTES AND PROVISIONS. 832 

construct, keep up, repair and use a common or union railroad of one 
or more tracks, connecting the railroads of such companies, for busi- 
ness purposes. R. S. 1894, § 5221. 

[Acts 1885, p. 30. In force March 2, 1885.] 

1323. Union railway company. — 1. That where two or more rail 
road companies own or operate railroads extending into, through or 
near the same city or town, such companies, or any two or more of 
them, may form a union railway corporation, according to the pro- 
visions hereinafter contained. R. S. 1894, § 5232. 

1324. Certificate of incorporation. — 2. The railroad companies 
uniting in the formation of such corporation are designated as proprie- 
tary companies, and shall make a certificate of incorporation, in which 
they shall specify the name of the company to be incorporated there- 
under, the amount of the capital stock of such company, the number 
and the par value of the shares into which it shall be divided, the 
aggregate amount of the par value of the shares of each proprietary 
company, the county or counties in which said union railway shall be 
situate, with the name of the town or city within or near which said 
union railway is to be constructed. R. S. 1894, § 5233. 

1325. How signed and attested. — 3. Such certificate of incorpora- 
tion shall be signed by the president or vice-president, and attested by 
the secretary of each of said proprietary companies, and shall be sealed 
with its corporate seal, and shall be acknowledged by the respective com- 
panies by their said officers before some person authorized to take and 
certify the acknowledgments of conveyances of real estate and shall be 
filed and recorded in the recorder's office of the county or counties in 
which said union railway company may be situated; and upon the 
filing of such certificate as aforesaid, the union company so formed 
shall be a corporation of this state, with all the powers incident 
thereto, and such other powers as are conferred by this act. R. S. 
1894, § 5234. 

1326. Rights as owner or lessee. — 6. Any such union railway 
company may, as owner or lessee thereof, operate any belt railroad 
extending around, or partly around, the town or city in or near which 
such union railway may be situated, the track of which belt road con- 
nects with the track of said union railway company, or with the track 
of any of its proprietary companies, to the end that such town or city 
may be relieved, as far as practicable, of the passage through it of 
through freight cars or through freight trains. R. S. 1894, § 5237. 

1327. Powers. — 7. Any such union railway company may erect, 
construct, rebuild and replace, in connection with its tracks, union 
depots, car sheds, and such other structures and appliances as the 
company may deem necessary to facilitate the transaction of its busi- 
ness, and the business of its proprietary companies, and of other rail- 
road companies whose tracks may connect therewith, and which may 
acquire from such union railway company the right to use said union 
tracks and their appliances. And such union company shall also 



833 RAILROADS. § 1328 

have power to locate, construct, rebuild, keep up, change and repair 
such union railroad and its tracks, side-tracks, switches, depots, sheds 
and other structures and appliances, and to take conveyances and re- 
leases in fee-simple, or otherwise, of rights of way and of such real 
estate as it may deem necessary for the purposes aforesaid, and may 
condemn in fee-simple, or otherwise, so much real estate and such 
rights of way as it may deem necessary for the purposes aforesaid, 
or any of them; also, to construct, own, maintain and operate union 
passenger stations, local freight stations, transfer and connecting 
tracks, between the property of such union company and property 
and tracks of other railroad companies. R. S. 1894, § 6238. 

Rules and regulations respecting transfer companies, hacks, etc., see Indianapolis, 
etc., R. Co. V. Dohn, Ind. Sup. Ct., May 23, 1899. 

1328. Condemnations. — 8. The condemnations authorized in the 
last section may be made and had according to the provisions of the 
charter of any or either of said proprietary companies, or under and 
according to the general railroad law of this state, in force at the time 
providing for the condemnation of real estate for railroad purposes, 
or according to the provisions of article 30 of chapter 2 of the Revised 
Statutes of 1881, providing for the writ of assessment of damages. 
R. S. 1894, § 5239. 

1329. Streets and alleys — How vacated. — 10. If any such union 
railwa}^ company, in carrying out the powers granted by this act, 
shall deem it necessary that any part of any street, avenue or alley in 
any town or city in which such union railway shall be situated should 
be vacated, it shall be lawful for the president and trustees of such 
town, or for the common council of such city, or for the board of al- 
dermen and common council of such city, as the case may be, to 
vacate any part of any street, avenue or alley of such town or city for 
the purposes contemplated by this act: Provided, however, That as a 
basis of such vacation, such union railway company shall present to 
and file with the proper municipal body or bodies of such town or city 
its petition, setting forth a description of the part of the street, avenue 
or alley proposed to be vacated, and the purpose for which the ground 
is proposed to be used, and there shall be appended to such petition, 
as a part of the basis of such vacation, the written consent to the 
granting of the prayer of such petition of the owners in fee-simple of 
more than one-half of the real estate fronting on both sides of said 
street or alley, which, or part of which, is proposed to be vacated, es- 
timated by the frontage in feet upon such street or alley, such front- 
age to commence at a line drawn across such street or alley equidis- 
tant from the termini of that portion of the street or alley proposed to 
be vacated, and extending along said street or alley from said line fif- 
teen hundred feet in each direction, unless such street, avenue or al- 
ley shall not be continuous in either direction from said line fifteen 
hundred feet, in which case the consent of owners above provided for 
shall only be required for the distance that it is continuous. Before 
granting the prayer of the petition, such municipal body, or bodies, 
shall ascertain and determine that the consent of the owners of the 

CiT. AND To.— 53 



§ 1330 MISCELLANEOUS STATUTES InD PROVISIONS. 834 

requisite number of front feet has been obtained as aforesaid, and such 
finding shall be made a matter of record, and shall be conclusive of 
the facts so found in all collateral proceedings: Provided, however. 
That before said petition is presented, twenty days' notice shall be 
given by such union railway company, by publication by three inser- 
tions in two newspapers of general circulation printed and published 
in the town or city in which such union railway may be situated, set- 
ting forth that on a day, to be therein named, or at the next meeting 
thereafter of such municipal body or bodies, a petition for the vaca- 
tion of the portion of the street or alley in question, describing it, will 
be presented to such municipal body or bodies for action thereon. 
R. S. 1894, § 5241. 

Vacation— Obstruction of street— Eig'ht of recovery— Question of law, of fact- 
Degree of injury. — Upon the vacation of a street and the erection of structures on the 
vacated part, as to whether one whose access to his property has not been cut off by the 
vacation may recover, is a question of law. The degree of injury is a question of fact. 
Dantzerv. Indianapohs, etc., R. Co., 141 Ind. 604. 

Remote obstruction— Injury hi common with community— Easements of access, 
lig'ht and air. — Where lot does not abut upon the street obstructed, and the owner is 
only affected by an inconvenience in traveling to and from his premises, the incon- 
venience is one suffered alike by all the community, and no recovery therefor can be 
had. Easements of access, of light and of air, are all confined to the street in front of the 
lot, and if a remote obstruction does not affect these, there is no legal injury or tort 
even though the access be rendered more inconvenient or a more circuitous route is 
necessitated. Dantzer v. Indianapolis, etc., R. Co., 141 Ind. 604. 

Obstruction of easement of access— Damag-es— Recovery.— The obstruction of the 
easement of access need not ahvays be upon the inunediate front of the lot, the owner 
of which is affected, but if the obstruction, though remote, render access to such lot 
impossible, or impairs it in a substantial manner at the point where it abuts upon the 
street, the property right of the lot owner is invaded, and he may recover. Dantzer v. 
Indianapolis, etc., R. Co., 141 Ind. 604. 

1330. Liabilities. — 15. Every such union railway company shall 
oe primarily liable to the public and to third persons on its contracts 
and for its torts, but it shall be competent as between themselves for 
such proprietary companies, such associate companies, and said union 
railway company, to agree among themselves that the ultimate liability 
for damages for any class of injuries to persons or property shall fall 
upon one or more of said companies, and such agreement as to such 
ultimate liability may be enforced as between the companies parties 
to such agreement: Provided, however. That nothing herein contained 
shall prevent any person suing for an injury to persons or property 
from joining as defendants any or all of said companies, if the facts 
would have justified such joinder if this section had never been passed. 
R. S. 1894, § 5246. 

[Acts 1893, p. 302. In force May 18, 1893.] 

1331. Lights at street crossings. — That the common councils of 
all cities of this state, not working under a special charter granted by 



835 RAILROADS. § 1331 

the legislature of the state of Indiana, shall have the power to provide 
by ordinance or resolution for the security and safety of citizens and 
other persons from the running of trains through any city by requir- 
ing railroad companies running and operating a railroad through any 
cit}^ to keep and maintain lights on all nights that the common coun- 
cil may direct, at the points where the railroad tracks cross a street in 
any city, and may in such ordinance or resolution provide what kind 
of lights the railroad company shall maintain, and the manner of en- 
forcing the compliance with the said resolution or ordinance by the 
railroad company, and for that purpose shall have power to pass and 
enforce a penal ordinance: Provided, That no city shall have authority 
under this act to pass any resolution or ordinance requiring any rail- 
road company to maintain any different kinds of lights than that 
maintained by said city. R. S. 1894, § 5173. 

See ante, § 124, clause 42. 

Provisions construed— Security and safety of citizens.~The power granted by this 
section is to be exercised for the security and safety of citizens and other persons from 
the running of trains through the city. The purpose of the statute is not street hghting, 
or track hghting, and an ordinance passed by a city the purpose of which is to secure 
street hghting regardless of the security and safety of citizens and other persons from 
the ninning of trains through the city is void. City of Shelby ville v. Cleveland, etc., 
E. Co., 146 Ind. 66] Cleveland, etc., R. Co. v. City of Connersville, 147 Ind. 277. 

The power granted by this statute is a general one, and the mode and manner of its 
exercise are not prescribed, but are left to the discretion of the city ; the courts may 
therefore inquire whether in the enactment of an ordinance under the power granted 
there was a reasonable exercise of the power. City of Shelby ville v. Cleveland, etc., R. 
Co., 146 Ind. 66. 

Under the power granted by this section the common council can not require that the 
electric lights prescribed by the ordinance should be of a particular pattern ; and an or- 
dinance which requires railroad companies to maintain a light wherever the tracks of 
such companies cross a public street in said city, which fails to provide definitely for 
the times during which the lamps should be lit, is not a reasonable exercise of the power 
granted. City of Shelbyville v. Cleveland, etc., R. Co., 146 Ind. 66; Cleveland, etc., R. 
Co. V. City of Connersville, 147 Ind. 277. 

An ordinance passed under this act providing that ''all railroad companies whose 
tracks cross or intersect any public street of the city shall place, keep and maintain at 
all points where such railroad crosses any public street, electric lights of 2,000 nominal 
candle power, which shall be kept burning every night from twilight until dawn," and 
prescribing a penalty for its violation, was repealed by implication by a later ordinance 
which provided that all railroad companies running and operating a railroad through 
said city should keep and maintain electric lights at such points and for such times as 
were specifically stated in the ordinance, prescribing a penalty for the violation thereof. 
There being no reservation in the later ordinance respecting pending actions under the 
former, such actions must fail. Terre Haute, etc., R. Co. v. City of South Bend, 146 
Ind. 239. 

An ordinance requiring a railroad company to erect and maintain arc electric lamps 
or lights and keep them lighted from dusk to dawn on each and every night, at the 
points where the railroad crosses the streets of the city, where the railroad runs no 
trains over its road through said city after eight o'clock at night, exceeds the power 
vested inacityby this statute and is void. Cleveland, etc., R. Co. v. City of Con- 
nersville, 147 Ind. 277. 



1332 



MISCELLANEOUS STATUTES AND PROVISIONS. 



836 



ARTICLE 3.— STREET RAILWAYS. 



SEC. SEC. 

1332. Construction of tracks — Use of by 1350, 

other companies — Cities of 35,000. 1351. 

1333. Construction of tracks — Use of by 

other companies— Cities of 100,000. 1352. 

1334. Street improvements, time for pay- 

ment. 1353. 

1335. Bonds to secure payment. 1354. 

1336. Acceptance by stockholders. 1355. 

1337. Lien of bonds. 

1338. Default in payment, collection. 1356. 

1339. New bonds in lieu of old. 1357. 

1340. Liability of city or town. 1358. 

1341. By-laws — Rates of fare — Penalty. 

1342. Charging unlawful fare, penalty. 1359. 

1343. Refusal to transfer, penalty. 1360. 

1344. Municipal control of street railways 

— Termination of franchise, pro- 1361. 
ceedings. 

1345. In cities of more than 100,000— Con- 1362. 

tract with city. 1363. 

1346. Terms, conditions and period of con- 1364. 

tract — Methods of propulsion — 1365. 

Extension of lines — Use of tracks 1366. 

by other companies— Forfeiture. 1367. 

1347. Terms binding during life of con- 1368. 

tract. 1369. 

1348. May acquire other franchises. 1370. 

1349. May sell and convey property. 



Remedy of dissatisfied shareholders. 

Rights of creditors — Liens — Unim- 
paired. 

Period of contract — Removal of tracks 
— Free competition. 

Exclusive powers over streets, etc. 

Penalty for charging excessive fares. 

Extension beyond city or town — Con- 
sent of county board. 

Consent of gravel road companies. 

Protection and regulation. 

Track on highway — Agreement — Pro- 
viso. 

Use of electric power. 

Street railway companies furnishing 
light, heat and power. 

Conveying and encumbering prop- 
erty. 

Consolidation of companies. 

Resolution recorded. 

Connections. 

Concerning completion of lines. 

Rights and privileges. 

Intersecting and joining other roads. 

Contracts and agreements. 

Heating of street cars. 

Penalty. 



Street railway companies— R. S. 1894, ch. 44 (§§5450-5479) ; Burns' Supp. 1897, ch. 
44 (§§5452-54795); Acts 1899, pp. 209, 230, 260, 378, 408. 
See chapter note preceding § 1308, ante. 

1382. Construction of tracks — Use of by other companies, cities of 
35,000. — 5. Such company may construct its track, switches, side- 
tracks or turnouts upon the streets of said cities or towns under the 
following conditions and restrictions: The said track shall be con- 
structed upon the center or side of said streets, and shall conform 
exactly to the established grade of such street. The free passage of 
the streets of such city or town, occupied or used by said company, 
shall be impeded or obstructed by such company, only to the extent 
necessary for the purposes for which said company was organized. 
The points where such track shall intersect and cross the streets of 
such city or town shall be so arranged by said company as to render 
the crossing as passable and in as good condition as any other portion 
of the street. The track shall be from four to five feet in width. 
Every company organized under the provisions of this act and own- 
ing and operating a street railroad within any city having a popula- 
tion of thirty-five thousand and not exceeding forty-nine thousand 



837 STREET RAILWAYS. § 1332 

people, according to the last preceding United States census, shall per- 
mit the use of its track or tracks by any incorporated interurban 
passenger railway company from the corporate limits of such city or 
town to some central point in such city or town, for the purpose of 
receiving and discharging passengers, whenever the board of public 
works and common council of any such city or town shall by ordi- 
nance fix such central point and grant a right of way thereto, with 
a proper loop for turning its cars, to such interurban passenger rail- 
w^ay company upon or over any street, alley, road-bridge or public high- 
way of such city or town now or then occupied in whole or in part 
by any street raihvay company with one or more tracks: Provided, 
That such use shall be upon such conditions as the board of public 
works and common council of such city or town may prescribe, and 
upon such terms as to compensation as such companies may mutually 
agree. And in case such companies can not agree as to such com- 
pensation within thirty days from the passage of such ordinance, then 
such use shall be permitted upon such terms as to compensation as 
may be fixed and determined by an action instituted by either of such 
companies in the circuit court of the county in which such city or 
town may be situate: Provided, Said company may use such tracks 
from the time of filing the said action, and no appeal shall operate to 
stay the use of such track or tracks as fixed and determined in said 
action: And provided, further. That in case the company owning and 
operating street railroad system in such cit^^ can not furnish power to 
propel the cars of the suburban company, then in that event the sub- 
urban company shall have a right to construct and maintain feed and 
trolley wires on the poles of the company in such city to such term- 
inal point designated by the board of public works and the common 
council of such city, and the compensation for the use of the poles 
for the construction of such wires is to be fixed as above provided for 
the use of tracks; or in case conduits or other methods of placing or 
carrying wires for power are used, the said conduits or methods may 
be used for placing the feed wires for power. Provided, further, That 
such interurban or entering company shall not erect other poles or lay 
any additional rails or poles in or on any such streets, alleys or high- 
ways already occupied. [As amended, Acts 1899, p. 230. In force 
March 2, 1899.] 

See ante, § 218, note, Railroads — Street Railways. 

The above act amends section 1 of the act of 1891. The succeeding section is an act 
passed two days later by the same legislature and assumes also to amend section 1 of 
the act of 1891. Section 1 of the act of 1891 amended section 5 of the act of Jane 4, 
1861. It is the opinion of the compiler that the later act (see succeeding section) is not 
effective, but it has been deemed best to set it forth. Feibleman v. State, 98 Ind. 518, 
576; Ford v. Booker, 63 Ind. 395; Blakemore v. Dolan, 50 Ind. 194. 

Duties as to streets and hig'liways.— It is the duty of a street car company to main- 
tain its tracks so as to preserve the public highway in a reasonably safe condition for 
public use and travel, whether there is any ordinance requiring it to be done or not, and 
w^hether the tracks are upon a street within the corporate limits of the city or upon a 
highway beyond the corporate limits. Citizens' Street R. Co. v. Ballard, Ind. App. Ct., 
Jan. 24, 1899. 



§ 1333 MISCELLANEOUS STATUTES AND PROVISIONS. 838 

1333, Construction of tracks — Use of by other companies— Cities 

of 100,000. — 1. [5.] Such company may construct its tracks, 
switches, side-tracks or turn-outs upon the streets of said cities or 
towns under the following conditions and restrictions : The said track 
shall be constructed upon the center or side of said streets, and shall 
conform exactly to the established grade of said street. The free pas- 
sage of the streets of such city or town, occupied or used by said com- 
pany, shall be impeded or obstructed by such company, only to the 
extent necessary for the purposes for w^hich said company w^as organ- 
ized. The points where such track shall intersect and cross the streets 
of such city or town shall be so arranged by said, company as to ren- 
der the crossing as passable and in as good condition as any other 
portion of the street. The track shall be from four to five feet in 
width. Every company organized under the provisions of this act and 
owning and operating a street railroad within any city having a popu- 
lation of one hundred thousand and upwards, according to the last pre- 
ceding United States census, shall permit the use of its track or tracks 
by any incorporated suburban passenger railw^ay company from the 
corporate limits of such city or tow^n to some central point in such 
city or town, for the purpose of receiving and discharging passengers, 
whenever the board of public w^orks and common council of any such 
city or town shall by ordinance fix such central point and grant a 
right of way thereto with a proper loop for turning its cars, to such 
suburban passenger railway company upon or over any street, alley, 
road-bridge or public highway of such city or town now or then occu- 
pied in whole or in part by any street railway company with one or 
more tracks : Provided, That such use shall be upon such conditions 
as the board of public works and common council of such city or tow^n 
may prescribe, and upon such terms as to compensation as such com- 
panies may mutually agree. And in case such companies can not 
agree as to such compensation within thirty days from the passage of 
such ordinance, then such use shall be permitted upon such terms as 
to compensation as may be fixed and determined by an action insti- 
tuted by either of such companies in the circuit court of the county 
in which such city or town may be situated : Provided, Said company 
may use such tracks from the time of filing the said action, and no 
appeal shall operate to stay the use of such track or tracks as fixed 
and determined in said action : And provided, further, That in case 
the company 0T\^ning and operating street railroad system in such city 
can not furnish power to propel the cars of the suburban company, 
then in that event the suburban company shall have a right to con- 
struct and maintain feed and trolley wires on the poles of the com- 
pany in such city to such terminal point designated by the board of 
public works and the common council of such city, and the compen- 
sation for the use of the poles for the construction of such wires is to 
be fixed as above provided for the use of tracks, or in case conduits or 
other methods of placing or carry [ing] wires for power are used, the 
said conduits or methods may be used for placing the feed wires 



839 STREET RAILWAYS. § 1334 

for power : Provided, further, That such suburban or entering com- 
pany shall not erect other poles or lay any additional rails in or on 
any such streets, alleys or highways already occupied. [As amended, 
Acts 1899, p. 480. In force March 4, 1899.] 

For reasons stated under preceding section, it is the opinion of the compiler that this 
section is not vahd. 

Tracks not an additional burden— License or franchise.— A street railway is not an 
additional burden to that of the general easement which the public has in the street, 
and the owners of the fee are not entitled to damages on account of the construction 
thereof on a public street ; but a street railway can not be laid upon the streets of a 
town or city without a grant of a license or franchise therefor, either by the munici- 
pahty or the legislature. Chicago, etc., R. Co. v. The Whiting, etc., R. Co., 139 Ind. 297 ; 
Indianapolis, etc., R. Co. v. Citizens', etc., Co., 127 Ind. 369; Eichels v. Evansville, 
etc., Co., 78 Ind. 261; 3 Elliott on Railroads, §§ 1088, 1135. 

But a street railroad may be an additional burden if it deprive the abutting lot-owner 
of easement of access, or is operated so as to be a nuisance. 3 Elliott on Railroads, 
§ 1088 and notes and cases. 

Rig"ht of street railroad to cross steam railroad at street crossing*. — The street 
railway company's right to use the street being founded on the easement in the public, 
the right of a street railway to cross over the tracks of a steam railway laid on the street 
is subject to no conditions other than those to which the general public is subject in 
traveling over such street. A street railroad company which has complied with the 
laws and regulations relating to such companies, has the right to construct and lay its 
tracks over and across the track of a steam railroad, at its own expense, without pay- 
ment of damages, when such steam railroad is laid in and upon a street. Chicago, etc., 
R. Co. V. Whiting, etc., R. Co., 139 Ind. 297 ; 3 Elliott on Railroads, § 1135. « 

Statute construed— Applies to cities under special charters.— The act of June 4, 
1861, granting the right to street railway companies to locate and maintain tracks upon 
the streets of a city, applies to cities organized under a special charter. Eichels v. 
Evansville, etc., Co., 78 Ind. 261. 

[Acts 1897, p. 173. In force March 6, 1897.] 

1334. Street improyements, time for payment. — 1. That wherein 
any city or town in said state having therein a street railway operated 
by electricity or other power operating such street railway, the com- 
pany is required by its franchise to pave any portion of any street or 
alley in any city or town, then said city or town shall extend by or- 
dinance or resolution to such street railway company, if it should be 
so requested by the street railway company, a period of time in which 
to pay for the said improvement or improvements. Burns' Supp. 
1897, § 5454a. 

1335. Bonds to secure payment. — 2. When the franchise of such 
company requires paving to be done by such company, then the com- 
mon council of such city, or board of trustees of such town shall, when 
such company shall so request, and shall execute and file with the 
clerk of such city or town, the stipulation and agreement waiving ob- 
jections on account of illegality or irregularity of proceedings, as is 
now required by law in case of owners of abutting property, by proper 
resolution or ordinance, enter into an agreement with said street rail- 
way company to issue bonds for a period of years not less than ten, or 



§ 1336 MISCELLANEOUS STATUTES AND PROVISIONS. 840 

for any other number of years agreed to by such common council or 
board of trustees and such street railway company, and shall issue the 
same according to such agreement. Such bonds to be in such denom- 
ination as may be agreed upon, and shall bear interest not to exceed 
six per cent, per annum. The amount of said bonds shall be equal to 
the amount due for the improvement, and said bonds shall be divided 
into a series of equal parts corresponding to the number of years in 
which the bonds are to be payable. One equal series of such bonds 
shall become due and payable each year with the interest on the whole 
of the amount of the bonds which interest shall be payable semi- 
annually. The said bonds shall be issued and sold by said city, or 
town, in the same manner, and be governed by the same laws as other 
street improvement bonds. Burns' Supp. 1897, § 54546. 

1336. Acceptance by stockholders. — 3. That before the said bonds 
are to be issued and any street railway company is to receive the 
rights and benefits conferred by this act, such street railway com- 
pany shall call a meeting of its stockholders and have them accept the 
ordinance or resolution passed by the common council of such city, or 
the board of trustees of such town, and after such action by the stock- 
holders, the directors of such company shall ratify the action of 
said stockholders, and certified copies of the minutes of the meetings 
are to be properly attested and filed with the clerk of such city or town. 
Burns' Supp. 1897, § 5454c. 

1337. Lien of bonds. — 4. That such improvement bonds shall 
have the same priority over other liens as have assessments for other 
street improvements, and are to be the first lien on all the property, 
assets and franchises of said street railway company. Burns' Supp. 
1897, § 5454(Z. 

1338. Default in payment, collection. — 5. Should any street rail- 
way company fail to pay any such bonds, or interest thereon, at 
maturity, then all of the said bonds shall become due and payable at 
the option of the holder, or holders of the same, or of such common 
council, or such board of trustees, and the same may be foreclosed as 
any other street improvement bonds; in which action the plaintiff or 
plaintiffs may have a receiver appointed for said company to take 
charge of, and sell all the property and assets of the defendant to 
satisfy such improvement bonds: Provided, however, That no action 
shall be brought against any street railway company under this act 
until there is a default which has been continued for six months after 
the payment of the principal or interest of such bonds is due. Burns' 
Supp. 1897, § 5454e. 

1339. New bonds in lieu of old. — 6. If any street railway has en- 
tered into any agreement prior to the passage of this act, by and under 
which bonds have been issued for any street improvement, and said 
city desires to make further street improvements, for which said com- 
pany would be liable, then such city may issue new bonds in lieu of 
any bonds that may have been heretofore issued, and the proceeds 
thereof shall be paid to the holders of the outstanding bonds, and 



841 STREET RAILWAYS. § 1340 

such reissue of bonds shall retain the same priority as the original. 
Burns' Supp. 1897, § 5454/. 

1340. Liability of city or town. — 7. Nothing in this act shall be 
construed to mean as extending the liability of any city or town on 
account of such improvements beyond the liability existing as to other 
street improvement bonds. Burns' Supp. 1897, § 5454^. 

Chang'e of ordinance. — "\Miere an ordinance provides that a street railway company 
shall keep the space between the rails and a certain space outside each rail in repair, 
the city can not, by a subsequent ordinance, impose on such company, without its con- 
sent, the obligation of paying a proportionate share of the cost where a street occupied 
by its railway is improved. Western, etc., Co. v. Citizens', etc., Co., 128 Ind. 525, 534. 

Consideration — Parol evidence.— An ordinance amending a section of an ordinance 
which required the Citizens' Street Eailway Company to pave between its tracks pro- 
vided that such company should only be required to keep the space between the rails 
in good repair. The city by a subsequent ordinance sought to compel the company to 
pay a part of the street improvements. This ordinance was not accepted by the com- 
pany. Afterward the city granted to the Citizens' Street Railroad Company, the pur- 
chaser of the street railway, all the rights, privileges and franchises of the Citizens' 
Street Railway Company, in consideration that the former company should assume all 
the obligations and duties of the latter. It was not competent to prove by parol that 
the new company, in consideration of the passage of the ordinance ratifying and ap- 
proving the sale, accepted the ordinance which sought to make the old company liable 
for street improvements. Western, etc., Co. v. Citizens', etc., Co., 128 Ind. 525, 538. 

Exacting' costs for improvements.— AVhere the charter of a street railway company 
provided that the company should pave the space between the tracks, an ordinance pro- 
viding for the paving of the street, on which the tracks were, required the cost of paving 
between the tracks to be assessed against the company, such provision was valid, and 
the contractor could not require the cost of paving such part of the street to be assessed 
against the abutting owners. State v. City of Michigan City, 138 Ind. 455. 

Contract, ordinance. — A city by an ordinance authorized the paving of a street and 
the mayor to enter into a contract for the work. The ordinance provided that the prop- 
erty owners should pay for a portion of the paving, and that a company operating a 
street railway on the street should pay for the balance. The contract provided that the 
work should be done "according to the ordinance and specifications." The work was 
done, and after it was finished the contractor acquiesced in the manner of payment. 
The ordinance was made a part of the contract, not only as to the manner in which the 
work should be done, but also as to the manner in w^hich it should be paid for. State 
V. City of Michigan City, 138 Ind. 455. 

Charter to be strictly construed. — A street railway charter is to be strictly con- 
strued against the railway company, and it has no doubtful rights under such charter, 
for where there are doubts they are construed against the grantee and in favor of the 
city. Western, etc., Co. v. Citizens', etc., Co., 128 Ind. 525, 630. 

Amendatory ordinance— Consideration.— A compliance by the Citizens' Street Rail, 
way Company with the conditions expressed in the amendatory ordinance of 1878, 
passed by the common council of the city of Indianapolis, was a sufficient consideration 
for the amended ordinance, and when it was accepted by the company and its con- 
ditions complied with it became a binding contract. Western, etc., Co. v. Citizens', 
etc., Co., 128 Ind. 525, 531. 

Liability for assessment— Estoppel.— A street railway company, whose property is 
not subject to assessment for street improvements, is not estopped to deny its liability 
for an assessment, because it stands by without objection until the improvement is com- 
pleted, if it is oue which the city has authority to make. Western, etc., Co. v. Citi- 
zens', etc., Co., 128 Ind. 525, 539. 



§ 1341 MISCELLANEOUS STATUTES AND PROVISIONS. 842 

1341. By-laws — Rates of fare — Penalty, — 9. The directors of such 
company shall have power to make by-laws for the management and 
disposition of stock, property and business affairs of such company 
not inconsistent with the laws of this state, and prescribing the duties 
of officers, artificers and servants that may be employed, and for the 
appointment of all officers for the carrying on all business within the 
objects and purposes of such company and for regulating the running 
time, fare, etc., of said -road or roads: Provided, hoiuever, That in 
cities in this state having a population of 100,000 or more, according 
to the United States census of 1890, the cash fare shall not exceed 
three cents for any one trip or passage upon the street railroad or 
roads of the same, and every passenger upon such road or roads shall, 
upon his or her request or demand, without any further cash fare or 
charge, be transferred from the line upon which he may take passage 
to and upon any other line or lines in such city owned, controlled or 
operated by such company to which he paid his cash fare, and such 
company, its officers, servants, agents or employes shall, upon the 
request or demand of any passenger, give a transfer ticket or pass to 
such passenger entitling him to passage upon the line or lines to 
which he desires to be transferred, so that he may have one con- 
tinuous trip or passage over and upon any two of its lines, with- 
out any additional cash fare or charge to the point nearest his des- 
tination : Be it further provided, however. That such directors may 
provide reasonable regulations for the transfer of such passengers 
as to the place where such transfers shall be made and when such 
transfer tickets shall expire, but every passenger desiring to be so 
transferred shall be given a reasonable opportunity to do so and to be 
carried upon the line to which he desires to be transferred. And 
should any street railroad company in any such city charge, receive 
or collect more than three cents cash fare, or refuse or neglect to 
transfer passengers as herein provided, then said company shall for- 
feit and pay to the person from whom it receives, charges or collects 
the said cash fare in excess of three cents, or whom such company re- 
fuses to transfer as herein provided, the sum of one hundred dollars, 
to be recovered in a civil action in any court of competent jurisdic- 
tion; and the city in which such railroad company is doing business, 
running and operating its line or lines of road or roads may, upon 
the failure of such street railroad company to comply with any of the 
provisions of this act, declare the rights, terms, contracts and fran- 
chises of such company to the use and occupancy of the streets, alleys, 
and highways of such city for street railroad purposes forfeited and at 
an end and may proceed to oust such company from the use and occu- 
pancy of such streets, alleys and highways, and may contract and 
let to any other street railroad company the use and occupancy of 
such streets, alleys and highways for street railroad purposes, the 
same to be granted and let in accordance wdth the provisions of this 
act and the laws governing cities having a population of 100,000 or 
more according to the United States census of 1890. [As amended, 



843 STREET RAILWAYS. § 1342 

Acts 1897, p. 201. In force April 14, 1897.] Burns' Supp. 1897, 
§ 5458. 

Constitutional. — This section as amended is constitutional. City of Indianapolis v. 
Navin, 151 Ind. 139; contra, Central Trust Co. of New York v. Citizens', etc., Co., 82 
Fed. Eep. 1. 

1342. Charging unlawful fare, penalty. — 2. That it shall be un- 
lawful for any company organized under the provisions of this act and 
owning, controlling, running or operating any street railroad or sys- 
tem of street railroads in any city having a population of 100,000 or 
more according to the United States census of 1890, or any officer, 
agent, servant or employe of such company to demand, charge, re- 
ceive or collect from any passenger upon its road or system of roads a 
cash fare of more than three cents for any one trip or passage upon 
the same, and for any violation of the provisions of this section, such 
company, officer, agent or employe, shall, upon conviction thereof, be 
fined in any sum not less than fifty dollars and not more than five 
hundred dollars. Burns' Supp. 1897, § 5458a. 

1343. Kefnsai to transfer, penalty.— 3. That it shall be unlawful 
for any company organized under the provisions of this act, and own- 
ing, controlling, running or operating any street railroad system or 
street railroad in any city having a population of 100,000 or more ac- 
cording to the United States census of 1890, or any officer, agent, ser- 
vant or employe of such company, to refuse or neglect to transfer any 
passenger upon the same, after he shall have paid his fare, from any 
of its line or lines upon which he may have become a passenger to any 
other of the lines of such company owned, controlled, run or operated 
by it in such city and to which he may have requested or demanded 
to be transferred; or neglect or refuse to give to any passenger after he 
shall have paid his fare, upon demand or request, a transfer or pass 
ticket, entitling such passenger to be transferred or carried upon any 
other of its lines in such city to the point of his destination thereon, 
or who shall neglect or refuse to receive and carry any passenger after 
he shall have received a transfer ticket or pass entitling him to be 
transferred and carried by and upon some line or lines other than 
that upon which he originally took passage, shall, upon conviction 
thereof, be fined in any sum not less than fifty dollars and not more 
than five hundred dollars. Burns' Supp. 1897, § 54586. 

[Acts 1897, p. 154. In force April 14, 1897.] 

1344. Mnnicipai control of street railways — Termination of fi'au- 
cMse, proceedings. — 12. Nothing in this act contained shall be so 
construed as to take away from common councils of incorporated cit- 
ies the exclusive powers now exercised over the streets, highways, al- 
leys and bridges within the corporate limits of such cities; and all street 
railroad companies which may be organized under the provisions of 
this act, shall first obtain the consent of such common council to the 
location, survey, construction and operation of any street railroad, 



§ 1344 MISCELLANEOUS STATUTES AND PROVISIONS. 844 

through, or across, the public streets, alleys, and other public places 
of any city, before the construction of the same shall be commenced. 
And any street railroad company having heretofore, or which shall 
hereafter enter upon, use, and occupy, any of the streets, alleys, high- 
ways, or other public places of any city in this state, now having a 
population of more than 100,000 inhabitants, as shown by the last 
United States census, under any ordinance, or ordinances, contracts, 
or agreements, therein and thereby fixing, or purporting to fix, or 
limit, the period of time for the use and occupancy, for street railway 
purposes, on any or all of the streets, or other public places, in such 
city; or where such a time arrangement has been made, and the same 
has been extended by ordinance, or otherwise, for a further definite 
named period of time, upon a good and sufficient consideration; then, 
and in all such cases, upon the final expiration of such time, the rights 
to use such tracks in such streets, and other public places, laid in such 
city by any such railway company, its successors or assigns, or any 
other company, claiming under such ordinances, arrangements or 
agreements, shall immediately terminate and cease forever; and no 
street railroad company shall have the right to operate such tracks 
upon the streets of any such city, except under and in pursuance of an 
ordinance or contract, specifically stating the period of occupancy. 
When any contract or arrangement, heretofore or hereafter made be- 
tween any such city and any street railway company, its successor or 
assignee company, or other grantee or assignee, has expired or shall 
hereafter expire, then on, or after such expiration such company may 
remove its tracks and appurtenances from such streets, alleys, and 
other public places, doing no more damage to the streets and other 
public places, than is necessary, and when the same are removed, 
such company shall restore the streets, as nearly as may be, to the 
condition in which the same were prior to such removal; which re- 
moval shall be made within a time to be fixed by the mayor of such 
city, and the work shall be done under the supervision of the street 
commissioner, or other officer having the charge and supervision of 
the streets therein, and upon failure so to remove the same, the city 
may cause the same to be removed at the expense of the owner: Pro- 
vided, That at or before the expiration of the contract period of the oc- 
cupying company, such city, through its board of public works, shall 
open to free competition the further occupancy, for a period of thirty 
years, the streets of such city for the purpose of operating an electric 
street railroad, and such city, through its board of public works, shall 
prescribe all conditions and limitations for such use of such 
streets, and may prescribe what streets shall and what streets shall 
not be occupied for such purpose; also prescribe the maximum 
cash and ticket fares to be charged; what paving between the tracks 
and outside thereof shall be required of said company or companies so 
competing, and such other conditions as shall best promote the in- 
terest of such city and the public, and in such competition no 
company now organized or hereafter organized for such purpose 



845 STREET RAILWAYS. § 1344 

shall be excluded. iVnd if the occupying company shall not be the 
successful competitors, then such company as shall be successful in 
the competition, shall, immediately after the acceptance of his 
bid by said city, through its board of public works, file in the circuit 
court of the county in which such city is located, a complaint or 
petition for an appropriation or assessment of damages of the occupy- 
ing company, describing the plant, property, power houses, cars, elec- 
tric lines and poles and all other appurtenances and appliances con- 
nected with and used as a part of such railway system of such occupy- 
ing company to be appropriated, to which proceedings all persons 
having an interest in or a lien upon such property shall be made 
parties: Provided, That such new or other company or corporation at 
the time of filing its proceedings for an appraisement of the property 
of the occupying compan}^, shall also file in such circuit court a bond 
in such an amount as shall be required by the court, which bond shall 
be approved by the court; and said bond shall require that such new or 
other company or corporation shall take the property of the occupying 
company at its appraised value, and in default of so doing such new or 
other company or corporation shall forfeit all contract rights it may have 
with the city for occupying its streets, and shall be liable on such bond, 
either to the city or occupying company, or both, for any damage that 
may accrue to either the city or the occupying company, or both, for 
failure of such new or other company or corporation to pay the ap- 
praised value of the property of the occupying company. And the 
practice and proceedings in, and the value of such plant and property, 
shall be ascertained by, and in the same manner as, is now by law 
provided for the appropriation of property, for railway purposes, un- 
der the general laws of this state. And when the value is so ascer- 
tained, if a prior contract is expired, and, if not expired, then upon 
such expiration, such new company shall, within the time to be fixed 
by such court, thereafter pay such sum into the office of the clerk of 
the said court, on payment of which such company shall be seized, 
and become the owner, free and unincumbered, of all the title to, and 
of the property so appropriated, and shall proceed immediately to take 
possession of and operate such railway system, under its contract, if, 
and when, such term of such prior company is expired ; and upon 
failure to do so, the common council of such city shall have the power 
by ordinance to revoke and cancel such contract. In case the railway 
company owning the property to be appropriated has theretofore ac- 
quired rights to lay and maintain tracks outside of the corporate lim- 
its of such city, secured from the board of commissioners of such 
county, which tracks, at the time of such appraisement, by reason of 
the extension of the corporate limits, are within such city, the same, 
at the election of the owner, may be embraced in such proceedings 
and appraisement. [As amended. Acts 1897, p. 154. In force April 
14, 1897.] Burns' Supp. 1897, § 5464. 

Exclusive privileg'es of street. — A city can not give an exclusive right to a street 
railway company to occupy all its streets, to the exclusion of all other companies, and 



§ 1345 MISCELLANEOUS STATUTES AND PROVISIONS. 846 

SO prevent it afterward giving similar grants to other companies. But if it make such 
a grant and then make a similar grant to another company, that company which first 
occupies a street, or which first enters upon the construction of a particular line of 
street railroad, and has expended its money in the prosecution of the work, is entitled 
to possession of such street, or to the streets over w^hich such particular line passes, 
although the effect is that such company thus acquires the exclusive possession of such 
street or streets for the purpose of a street railroad. Indianapolis, etc., R. Co. v. Citi- 
zens', etc., E. Co., 127 Ind. 369 ; 3 Elliott on Railroads, § 1083 ; Elliott Roads and Streets, 
pp. 332, 566, 569. 

[Acts 1899, p. 260. In force March 3, 1899.] 

134:5, In cities of more than 100.000 — Contract with city.— 1. 

That it shall and may be lawful for any street railroad company now 
or hereafter organized under the laws of the state of Indiana for the 
purpose of operating a street railroad in any city the population of 
which by the federal census immediately preceding the incorporation 
of such railroad company exceeds one hundred thousand persons, and 
for such city to enter into a contract defining the terms upon which 
such railroad company shall exercise its franchise w^ithin such city, 
subject to all the provisons of this act. 

1346. Terms 9 conditions and period of contract — Methods of pro- 
pnlsion — Extension of lines — Use of tracks hj other companies — ^For- 
feiture. — 2. In any such contract shall be specified the term, not 
exceeding thirty-four years from the taking effect of the contract, dur- 
ing which the franchise of such corporation shall continue; the rate 
of fare to be charged, which shall be for a single cash fare not more 
than five cents for each passenger over the age of five years, with pro- 
visions in the contract securing the right of transfer for such cash 
fare to and over any other line of said company, and that six tickets, 
entitling the holder to passage and such transfer, shall be sold for not 
to exceed twenty-five cents, and that twent3^-five of such tickets 
with like transfers, shall be sold for not to exceed one dollar, and said 
contract shall provide that such tickets shall be kept for sale on all 
cars when the same are carrying passengers, and all such tickets shall 
be received as fare from any passenger presenting the same. The or- 
dinance granting such franchise and approving such contract shall 
specify the method or methods of propulsion that shall or may be used 
under such contract, providing that such ordinance and contract shall 
reserve to such city the right to require that such methods of propul- 
sion shall at any time be introduced as will insure first-class and 
efiicient service; and shall state the consideration to be received by 
said city. Said ordinance shall provide further, that the company 
making such contract shall be required to pave the space occupied by 
and between its tracks, and for a space of eighteen inches on the out- 
side thereof, to repave the same when necessary and ordered by the 
board of public works, and to keep the same in repair; said paving 
and repairing to be done under specifications, both as to material and 
manner, as provided by the board of public works, and under the 
supervision of the city engineer, and shall further provide that, at all 



847 STREET RAILWAYS. ' § 1346 

times during the period of such franchise, said city may require such 
reasonable extensions of the lines of said company or the construction 
of such new lines as may be necessary for the efficient operation of 
such railway and for the convenience of the public, and shall pro- 
vide further that said company shall not extend any of its said 
lines or enter upon any new streets in said city without the con- 
sent of the common council of said city first had and obtained, 
and in making such contract said city shall reserve to itself the right 
to at all times exercise such reasonable control over such company 
and the operation, maintenance and construction of its lines as will 
secure efficient and first-class service. And such ordinance and con- 
tract may contain such other terms, conditions or requirements, not 
inconsistent with the provisions of this act, as may be agreed upon 
between the parties, or may be necessary to make effectual all the 
terms of the contract. As a part of any contract entered into pur- 
suant to the provisions of this act, and as a part of the consideration 
therefor the company entering into said contract shall first make an 
absolute surrender to such city of all franchises and rights to the use 
and occupancy of the streets, alleys and public places of such city 
owned, held, or claimed by such company within the corporate limits 
of such city at the time of the making of such contract pursuant to 
the provisions of this act, or theretofore owned, held or claimed by 
such company. Any city entering into any contract with any com- 
pany under the provisions of this act for the use and occupancy of the 
streets, alleys and public places in such city for street railroad pur- 
poses may at any time within two years and not later than one year 
before the expiration of said contract purchase of such company its 
property of every description whatsoever, and if any such city and 
company shall be unable to agree upon the terms of such purchase, 
then such city may file its complaint or petition in the circuit court 
of the county in which such city is situated for a determination of the 
value of such property in the manner prescribed in section eight of 
this act, and when the value of such property is so ascertained such 
city may, upon the expiration of such contract after tendering the 
amount of the value of such property as determined by said court at 
once take possession of such property and operate such street railroad 
for its own use and purposes, and such city is hereby authorized to 
issue bonds for the payment in whole or in part of such sum fixed as 
the value of such property. Should said company habitually, contin- 
ually or continuously violate any of the provisions of this act, or fail 
to comply with the ordinance approving said contract or such other 
ordinances as are passed by the common council under the provisions 
of this act, then said company shall forfeit all its rights, title and 
interest in or to the use and occupancy of the streets, alleys and high- 
ways of said city for street railroad purposes, its contract and franchise 
for the same shall be at an end, and the prosecuting attorney of the 
county in which such city is located shall, upon the written com- 
plaint of five hundred resident freeholders of said city stating wherein 



§ 1346 MISCELLANEOUS STATUTES AND PROVISIONS. 848 

said company shall have violated the terms of such contract 
or ordinances or provisions of this act, bring an action in the circuit 
or superior court of the county in which such city shall be situated 
on relation of the state of Indiana, to forfeit the said contract and 
franchise and declare the same at an end, and such action shall be 
tried as other actions are tried, and upon a finding and judgment that 
such company has violated its said contract or said ordinances or pro- 
visions of this act, as hereinbefore provided, then said court shall 
enter a judgment and decree declaring said contract and franchise for- 
feited and at an end, and said city shall, through its board of public 
works, proceed to relet the use and occupancy of its streets, alleys and 
public places for street railroad purposes in the manner and upon the 
terms and conditions provided in section eight of this act, and if said 
action shall be determined in favor of such company, then the peti- 
tioners shall be liable for the costs of said action. Any such company 
so contracting with said city shall permit the use of its track or tracks 
by any incorporated suburban or interurban railroad company from 
the corporate limits, or from the nearest connecting point within the 
corporate limits of such city to some central point in such city, for 
the purpose of discharging and receiving passengers, with the right 
of such company to run its cars thereon to some loop and return 
thereon out of said city, whenever such use has been permitted by 
the board of public works and common council of said city by con- 
tract approved by ordinance. That the board of public works shall 
require in any such franchise granted hereunder, such consent to be 
given in such franchise with the right on the part of the board of 
public works and common council to establish such central point and 
designate the track or tracks to be used in going to and from the same 
in such city. That such use shall be upon such conditions and under 
such regulations as the board of public works and the common coun- 
cil of such city shall prescribe, and upon such terms as to compensa- 
tion as may be agreed upon by such companies; and in case such com- 
panies can not agree as to such compensation within thirty days after 
application made for the same, then such use shall be permitted upon 
such terms as to compensation as may be fixed and determined in an 
action instituted by either of such companies in the circuit court of 
the county in which such city may be situated; and pending such 
controversy or suit, such suburban or interurban company shall 
have the right to use the track or tracks designated by the board 
of public works or common council, upon executing a bond in 
such amount and with such security as shall be approved by said 
court, conditioned for the payment to such company owning and op- 
erating such railway in such city the compensation which may accrue 
up to the time of the final decision in said action, shall be fixed by 
the court: And, provided, That in case the company owning and oper- 
ating such railway in such city can not furnish power to propel the 
cars of such suburban or interurban company, then, in that event, 
such suburban or interurban company shall have the right to con- 



849 STREET RAILWAYS. § 1347 

struct and maintain a feed and trolley wire on the poles or in the con- 
duits of such company to such terminal points as may be designated 
by the board of public works and common council of such city, and 
compensation for the use of poles and conduits for the construction 
and maintenance of such wires is to be fixed as above provided for the 
use of the tracks; and in such case such suburban or interurban 
company shall have the right to establish and maintain power houses 
and place its wires on such poles or in such conduits. Provided, how- 
ever, That the provisions of this section shall not apply to any subur- 
ban or interurban railway company whose line, including the track 
or tracks so designated within said city, does not extend to a distance 
of six or more miles from such central point. 

1347. Terms binding during life of contract. — 3. All the terms and 
covenants of any contract so made, as aforesaid, shall be binding and 
conclusive for the period fixed therein, and no longer, and the mutual 
rights, powers, obligations and liabilities of the parties thereto, shall 
be as therein expressed, subject, however, to all the provisions of this 
act. 

1348. May acquire other francliises. — 4. It shall be lawful for any 
such railroad company contracting as aforesaid with such city, to ac- 
quire by purchase, lease or otherwise, the property and franchises, or 
any portion of the same, of any other street railroad company or com- 
panies now or hereafter incorporated under the laws of the state of 
Indiana, owning or operating or possessing a franchise, to own and 
operate a street railroad within such city, or connecting therewith in 
territory adjacent thereto, for mouey, shares of stock, or bonds or other 
obligations; and to issue in payment for the property and franchises 
so purchased or otherwise acquired, its bonds, obligations or shares of 
stock to such amount, in such manner, and upon such terms, as its 
board of directors may think proper and contract; and it shall also be 
lawful for such company in addition to the powers possessed under 
the general laws for the incorporation of street railroad companies and 
the amendments thereto to secure payment of all bonds or obligations 
so issued by it, by mortgage upon its corporate franchises, rights, 
privileges, property, real and personal, and mixed, as well as upon 
the franchises, rights, privileges, property, real, personal and mixed, 
purchased by it as aforesaid: Provided, That no bonds shall be issued 
by said company for a period extending beyond the time of the expi- 
ration of the contract executed under the provisions of this act. 

1349. May sell and convey property. — 5. Any street railroad com- 
pany now or hereafter incorporated under the laws of the state of In- 
diana owning or operating or possessing a franchise to own and oper- 
ate a street railroad in such city or connecting therewith in territory 
adjacent thereto, may sell, lease or otherwise transfer its property, 
franchises and assets of every description and wheresoever situated or 
any portion of the same to any other company authorized to acquire 
the same by purchase, lease or otherwise, under section four hereof for 

CiT. AND To.— 54 



§ 1350 MISCELLANEOUS STATUTES AND PROVISIONS. 850 

money, stock or bonds or other obligations: Provided, however, That such 
sale, lease or transfer shall be authorized by the vote of a majority in 
value of all the shares of said company, given at a meeting of the 
shareholders called for the purpose; at such meeting a resolution 
specifying the consideration, terms and conditions of such sale or 
transfer shall be submitted to the shareholders for their approval or 
disapproval; and upon the vote of a majorit}^ in value of said share- 
holders the board of directors of the said company shall cause the 
contract authorized by such resolution to be duly executed and deliv- 
ered to such purchaser, lessee or transferee by the proper officers of 
the company ; such meeting of said company shall be called in pur- 
suance of a resolution of its board of directors instructing the proper 
officers of the company to call the same, and after twenty days' notice, 
which shall be given by written or printed notice mailed to every 
stockholder at his last known postoffice address. 

1350. Kemedy of dissatisfied shareholders. — 6. If a sale be made, 
approved by a vote of the majority in value of all the shares of the 
company as aforesaid, any shareholder or shareholders of such com- 
pany not voting in favor of such sale, and who may be dissatisfied 
with the terms thereof, may apply by petition to the circuit court of 
the county in which such railroad is located, within thirty days 
after such shareholders' meeting, praying said court to appoint 
three disinterested persons to estimate and appraise the value of the 
property so sold, over and above any liens or incumbrances thereon 
and claims or indebtedness for the payment of which the same may 
be liable, and having so appraised said property and franchises, to 
estimate and ascertain the value thereof, and the value of said shares 
having been so appraised by the said commissioners by the vote of a 
majority thereof, shall be reported to said court, and when confirmed 
by the said court shall be final and conclusive on all parties. The 
value of the shares thus ascertained shall be paid to the said petition- 
ing shareholder by the street railroad company purchasing the property 
and franchises and other assets sold as aforesaid upon surrender to 
the purchasing company of the shares so appraised. In case said 
petitioning shareholders shall not present their shares to the purchas- 
ing company for surrender within sixty days from the date of said 
award, or in case of minority or other legal disability said purchasing 
company shall make payment of the amount of said award to the 
clerk of the court, and upon such payment to the clerk of court, the 
property or franchises purchased shall be released from the lien of 
said award. The cost of such proceeding shall be paid by the pur- 
chasing company. 

1351. Rights of creditors — Liens — Uniinpaired. — 7. All rights of 
creditors and liabilities for damages and all liens or incumbrances 
upon the property or franchises sold or transferred, pursuant hereto, 
shall continue unimpaired, and may be enforced as against such prop- 
erty and franchises as if said sale or transfer had not been made. 



851 STREET RAILWAYS. § 1352 

1353. Period of contract — Removal of tracks — Free competition. — 8 . 

No street railroad company shall hereafter have the right to use or 
occupy for street railroad purposes the streets, alleys, highways or 
other public places of any such city except under and in pursuance of 
an ordinance or contract specificall}^ stating the period of such use or 
occupancy. Where such use or occupancy is now or shall hereafter 
be had by any street railroad company under any ordinance, or ordi- 
nances, contracts or agreements in vv^hich is fixed or limited, or at- 
tempted to be fixed or limited, the period of time of such occupancy, 
or in which an extension of time originally so fixed or limited has 
been made, and the right and franchises of such use or occupancy 
shall not in nine or more months prior to the final expiration of the 
period of time so limited or extended have been granted for a further 
definite period of time to said company, or some company which has 
acquired the property and franchise of said company by a con- 
tract entered into by such city and said company under the pro- 
visions of this act, then, and in all such cases, upon the final ex- 
piration of the time so originally limited or extended, the right to 
such use or occupancy by said company, its successors and as- 
signs, or any other company claiming under such ordinance, con- 
tracts or agreements, shall immediately terminate and cease forever. 
Thereupon, such compan}^, its successors or assigns, may remove its 
tracks and appurtenances from such streets, alleys and other public 
places, doing no more damage thereto than is necessary, and when the 
same are removed such company, its successors or assigns, shall re- 
store such streets, alleys and public places as nearly as may be to the 
condition in which the same were prior to such removal; which re- 
moval shall be made within a time to be fixed by the mayor of such 
city, and the work shall be done under the supervision of the street 
commissioner or other officer having the charge and supervision of the 
streets therein, and upon failure so to remove the same, and to elect 
to have the same appropriated by its successor in such use and occu- 
pancy as hereinafter provided, the city may cause the same to be re- 
moved at the expense of the owner.' Provided, however, That not later 
than nine months before the expiration of the period of time so origi- 
nally limited or extended, in the event that no contract for the further 
use and occupancy of such streets, alleys and public places has been 
entered into under the provisions of this act between such city and the 
said company, its successors or assigns, such city, through its board 
of public works, shall open to free competition the further occupancy 
for a period not exceeding thirty years of the streets, alleys and pub- 
lic places of such city, for the purpose of operating therein an electric 
or other street railroad, and such city, through its board of public 
works, shall prescribe in the form of a contract to be entered into by 
the successful bidder, all conditions and limitations for such use of 
said streets, alleys and public places as prescribed in section two of 
this act; and such other conditions as shall best promote the interests 
of said city and the public, and also a bond or undertaking with sure- 



§ 1352 MISCELLANEOUS STATUTES AND PROVISIONS. 852 

ties to be approved by said board of public works, conditioned that 
the bidder, if successful, will enter into the prescribed contract in ac- 
cordance v/ith the terms and conditions thereof and of the bid, and in 
case of failing or refusing or forfeiting as hereinafter provided, the 
right to enter into such contract, to pay to such city all damages it 
may sustain by reason of such failure, refusal or' forfeiture, and, as to 
bidders other than the occupying company, that the bidder, if suc- 
cessful, and in case the occupying company elects not to remove its 
tracks and other property from the streets, will immediately insti- 
tute, as hereinafter provided, proceedings to appropriate the prop- 
erty of said company and pay the assessed value of such property 
to said company or other person entitled thereto as hereinafter 
provided. In such competition no company now or hereafter 
organized for such purpose shall be excluded. If the occupying com- 
pany shall not be the successful competitor, and elects not to remove 
its tracks or other property from the streets, then the company that 
shall be successful in the competition shall immediately after the ac-' 
ceptance of its bid by such city through its board of public works, file 
in the circuit court of the county where such city is located, a com- 
plaint or petition for an appropriation of the property of the occupy- 
ing company and an assessment of its damages by reason of such ap- 
propriation, describing the plant, property, power houses, cars, elec- 
tric lines and poles, and all other appurtenances and appliances con- 
nected with and used as a part of the railway system of the occupying 
company to be appropriated, and showing the execution of the bond 
or undertaking aforesaid, to which proceeding all persons having an 
interest in or lien upon such property shall be made parties. The 
practice and proceedings upon such appropriation, and in ascertaining 
the value of such plant and property, shall be as is now provided for 
the appropriation of property for railway purposes under the general 
laws of this state. When the value of such property is so ascertained 
upon the expiration of the contract of the occupying company, or if 
such contract has expired before the ascertainment of such value, 
then, within a time to be fixed by such court, such appropriating 
company shall pay such value to the clerk of the court for the use of 
the occupying company or other person entitled thereto as determined 
by the court; and upon such payment, the appropriating company 
shall be seized and become the owner, free and unincumbered, of all 
the title to and of the property so appropriated, and shall take pos- 
session of and operate such railroad system from and after the expi- 
ration of the contract of the occupying company; and upon failure to 
institute such proceedings, or to enter into or perform the contract in 
accordance with its bid, all right of the successful bidder to enter into 
the contract, or to the use and occupancy of the streets, shall be for- 
feited, and such city, through its board of public works, shall proceed 
to relet the use and occupancy of the streets, alleys and public places 
for street railroad purposes in the manner and upon the terms and 
conditions heretofore provided in this section, and several actions may 



853 ■ STREET RAILWAYS. § 1353 

be maintained upon such bond or undertaking by such city, occupy- 
ing company or other company or person interested, for such failure 
to perform its conditions. In case the railroad company owning the 
property to be appropriated has theretofore acquired rights to lay and 
maintain tracks outside of the corporate limits of such city secured 
from the board of commissioners of the county, which tracks at the 
time of such appraisement, by reason of the extension of the corporate 
limits, are within such city, the same, at the election of the owner, 
may be embraced in such proceedings and appraisement. 

1353. Exclusive powers over streets? etc.— 9. Nothing contained 
in this act shall be so construed as to take away from the board of 
public works and common council of any such city the exclusive 
powers now exercised over the streets, highways, alleys and bridges 
within such city, or the rights and powers now possessed by such 
board of public works and common council to enter into contract 
with reference to the use of streets, alleys and public places in such 
city for street railroad purposes, except in so far as such powers and 
rights shall be affected by contracts entered into pursuant to the pro- 
visions of this act, and except as such powers are reserved to such 
city by the provisions of this act. 

1354. Penalty for charging excessive fares.- — 10. It shall be un- 
lawful for any railroad company operating under a contract secured 
under the provisions of this act or an employe of the same, to charge 
or receive any greater amount for fares than that provided for in 
this act, and it shall be unlawful to fail or refuse to keep on sale tick- 
ets as provided in this act, and any one violating any of the provis- 
ions of this section shall be fined in any sum not to exceed one hun- 
dred dollars. 

For decisions of various questions under the street railway laws arising between the 
City of Indianapolis, the Citizens', etc., R Co., and the City R. Co., see Citizens', 
etc., R. Co. V. City R. Co., 56 Fed. Rep. 746; Citizens', etc., R. Co. v. City R. Co., 64 
Fed. Rep. 647; City R. Co. v. Citizens', etc., R. Co., 166 U. S. 557; City of Indianap- 
olis V. Navin, 151 Ind. 139; Central Trust Co. v. Citizens', etc., R. Co., 82 Fed. Rep. 1; 
City R. Co. V. Citizens', etc., R. Co., Ind. Sup. Ct., Dec. 16, 1898. 

In the last case cited, rehearing granted. Action dismissed. 

[Acts 1879 S., p. 175. In force March 29, 1879.] 

1355. Extension beyond city or town — ^Consent of county board, — 

1. Any street or horse-car railway company organized under the laws 
of the state of Indiana, and operating such railway within an}^ of the 
incorporated towns or cities of this state, and desiring to extend its 
road beyond such town or city limits on any state or county road or 
other public highway; or any other company organized under the laws 
of the state of Indiana, for similar purposes; or any person or persons 
desiring to build a horse or street railway outside of any city, on any 
public highway — may do so, after procuring the consent of the board 
of county commissioners of such county. R. S. 1894, § 5465. 

Rig*ht of street railroad to cross steam I'ailroad at street and higlnvay crossing- 
Injunction. — A street railway is not an additional burden to that of the easement 



§ 1356 MISCELLANEOUS STATUTES AND PROVISIONS. 854 

which the general pubhc has in the street or highway, and the street railway com- 
pany's right to use the street or highway is founded on that easement. The right of a 
street railway to cross over the tracks of a steam railway laid on a street or highway is 
subject to no conditions other than those to which the general pubhc is subject in 
traveling over the street or highway, and a steam railway company will be enjoined 
from interfering with a street railway company where the latter is proceeding to con- 
struct a proper crossing at its own expense. The same principle applies where the 
crossing is a public highway, not a street. Chicago, etc., R. Co. v. The Whiting, etc., 
R. Co., 139 Ind. 297; 3 Elliott Railroads, § 1135. 

Street railroad— Collision with locomotive at crossing'— Injury to passeng'er— 
Complaint. — In an action against an electric street railway company, by a passenger 
for personal injuries sustained by a collision of the electric car with a locomotive at a 
crossing, it is not necessary to allege that the electric railway was located on a public 
highway, and that those in charge of the locomotive had given the proper signals desig- 
nating an intention to cross the highway, when it is alleged that neither the locomotive 
nor the electric car gave any signal of its approach to the crossing, and that those in 
charge of the electric car saw the locomotive approaching and knew that it would reach 
the crossing at the same time with the electric car. Hammond, etc., R. Co. v. Spy- 
zchalski, 17 App. 7. 

1356. Consent of gravel road company.— 2. If such road or high- 
way be graveled or planked by a gravel or plank road company, such 
street or horse car railway company shall also be required to procure 
the consent of such gravel or plank road company, to run its road over 
such gravel or plank road; which consent, when given, shall not be 
revoked by such gravel or plank road company. R. S. 1894, § 5466. 

[Acts 1865, p. 63. In force March 6, 1865.] 

1357. Protection and regulation. — 3. Such street or horse car 
railway company operating such road outside of such town or city 
limits shall have the same protection, and, in its running, be governed 
by the same regulations prescribed for it within such town or city. 
R. S. 1894, § 5467. 

[Acts 1879 S., p. 175. In force March 29, 1879.] 

1358. Track on highway — Agreement — Proyiso*— 4. Such street 
or horse car railway company shall, in all cases in which any road or 
highway shall be used by it for the purposes expressed in this act, 
locate its tracks on such part of such highway as may be agreed upon 
between the parties making such application for the use of such high- 
way and the board of county commissioners of the county: Provided, 
That nothing in this act' shall interfere with any vested right hereto- 
fore acquired by any street railway company organized under the laws 
of the state of Indiana. R. S. 1894, § 5468. 

[Acts 1891, p. 68. In force March 3, 1891.] 

1359. Use of electric power. — 1. That any street or horse railroad 
heretofore or hereafter organized in this state may, with the consent 
of the common council of the city in which such railroad or any part 
thereof is located and operated, and with the consent of the board of 



855 STREET RAILWAYS. § 1360 

commissioners of the county where such raiboad or any part thereof 
is operated beyond the limits of such city, use electricity for motive 
power: Provided, That nothing in this act contained shall be so con- 
strued as to take away from the common councils of incorporated cities 
the exclusive powers now exercised over the streets, highways, alleys 
and bridges within the corporate limits of such cities, and all such 
street railroad companies shall first obtain the consent of such com- 
mon council for the operation by electricity of their cars along, through 
or across the public streets or alleys of any city before the operation 
by electricity of their cars shall be commenced: Provided, That in 
giving such consent such common council, or board of county com- 
missioners, may do so upon such terms and conditions as they may 
see fit to impose. R. S. 1894, § 5472. 

Motive power — Rival companies. — A city, having control over its streets, may pre- 
scribe the motive power to be used in moving cars, and when it prescribes one kind of 
power the company can not use another; and in a contest between two rival street rail- 
way companies for the possession of a street, one of which is using a motive power not 
authorized by its charter, the other company may attack its right to such street by 
showing such violation of its franchise. Indianapolis, etc., R. Co. v. Citizens', etc., R. 
Co., 127 Ind. 369, 393. 

[Acts 1895, p. 193. In force March 9, 1895.] 

1360. Street railway companies furnishing' light, heat and power. 

— 1. That any street railway company whose lines of street railway 
are, or may hereafter be operated, in whole or in part, by electrical 
power, may, with the consent of all the stockholders of such company, 
for the purpose of supplying electricity and steam, for light, heat and 
power, in the town or city, and its vicinity, in which such street rail- 
way is operated, purchase, or otherwise acquire, and hold and use 
the plant and other property, real and personal, rights, contracts, 
privileges, easements and franchises of any incorporated company 
which, or person or persons who, may be engaged in supplying elec- 
tricity or steam for light, heat or power in such city or town, or its 
vicinity, with like consent of all the stockholders of such latter com- 
pany, or of such person or persons. Burns' Supp. 1897, § 5472a. 

1361. Conveying and encumbering property. — 2. Any street rail- 
way company engaged in the business of supplying electricity or 
steam for light, heat and power, shall have the same right to sell, 
convey, mortgage, or otherwise dispose of or encumber its property 
and franchise acquired and used for the purposes of said business, 
either separately or in connection with its street railway property and 
franchises, as it possesses with reference to such street railway prop- 
erty and franchises. Burns' Supp. 1897, § 54726. 

[Acts 1899, p. 378. In force March 3, 1899.] 

1362. Consolidation of companies. — 1. Wherever tw^o or more 
street railroad companies have heretofore become associated, or shall 
hereafter become associated, in jointly making or running their roads 
under any contracts formed or to be formed by such companies, and 



§ 1363 MISCELLANEOUS STATUTES AND PROVISIONS. 856 

desire to consolidate their stock and to assume one common name, it 
shall and may be lawful for such companies, by resolution of their re- 
spective boards of directors entered upon their records, to make such 
consolidation and to assume such name as shall be mutually agreed 
upon. Provided, That only such companies shall be permitted to con- 
solidate under this act as have connecting and continuous lines con- 
structed or in process of construction. 

1363. Resolution recorded. — 2. It shall be the duty of said street 
railroad companies, upon such consolidation and the adoption of such 
common name, to cause a copy of the resolution of their respective 
boards to be recorded in the recorder's ofhce of the different counties 
through which the roads of said companies may run or be located. 
And thereafter, during the term of such consolidated association, such 
association may have and use the common seal, contract and be con- 
tracted with, sue and be sued by such adopted name in any and all 
matters relating to such consolidated road, and shall have full power, 
by such association, to locate, construct, keep up, change, repair and 
operate such consolidated road, as by their respective charters and 
amendments thereto they are allow^ed to do: Provided, however. That 
nothing herein contained shall be construed to abridge such compa- 
nies of any of the powers, privileges and franchises to them belonging 
by their respective acts of incorporation and amendments thereto: 
And, provided further, That nothing herein contained shall be construed 
to prevent said companies from suing and being sued in their original 
corporate names for all rights accrued and for all liabilities incurred 
before such consolidation and the adoption of such common name. 

1364. Connections. — 3. Any street railroad company organized 
and incorporated under the general laws of this state for the purpose 
of building a street railroad from any point in the state to a point on 
the state line, and any consolidated company, as in the prior sections 
of this act provided for, shall be authorized to connect with any other 
street railroad already made from such point on the state line, at any 
convenient point of intersection within this state. 

1365. Concerning completion of lines. — 4. Any such street rail- 
road company or consolidated company so connected with the road of 
another street railroad company shall not be required to complete its 
own road to the state line so long as it shall continue to be thus asso- 
ciated with a company owning such other street railroad already built 
from the state line, but its franchises and powers to build and 
complete its own road to the terminal point on the state line 
whenever it shall be necessary so to do, shall remain unimpaired: 
Provided, That a consolidation either temporary or permanent effected 
under the provisions of this act with any street railroad company 
whose branches or any of them may be jointly used or occupied, or 
vv^here a right by law exists to use and occupy the same by any other 
street railroad company, shall not in any manner affect the rights 
therein vested or secured by any act heretofore passed upon that sub- 
ject. 



857 STREET RAILWAYS. § 1366 

1366. Eights and privileges. — 5. Any street railroad company or- 
ganized as in this act provided, and completing its connection with 
its terminal point on the state line by connecting with the street rail- 
road of any other company as authorized by this act shall be taken 
and deemed to be a company owning and constructing a street rail- 
road to the state line, and shall possess all the rights, franchises and 
privileges and be subject to all the obligations and duties of a street 
railroad company owning a street railroad to the state line as pre- 
scribed by any general law of this state not inconsistent with the pro- 
visions of this act. 

1367. Intersecting and joining other roads, — 6. Any street rail- 
road operated by electric or other power organized under the laws of 
this state shall have the power to intersect, join and unite its street 
railroad with any other street railroad by whatsoever power operated, 
constructed or in process of construction in this state or in any adjoin- 
ing state at such point on the state line or any other point as may be 
mutually agreed upon by such company. And such companies are 
authorized to merge and consolidate the stock of the respective com- 
panies, making one stock company of the said street railroads thus 
connected, upon such terms as may be by them mutually agreed upon, 
in accordance with the terms and provisions of this act and with the 
laws of the adjoining state with whose street railroad or street rail- 
roads connections are thus formed : Provided, Their charters author- 
ize said street railroads to go to the state line or to other point of in- 
tersection. 

1368. Contracts and agreements. — 7. Any street railroad com- 
pany heretofore organized or which may hereafter be organized under 
the laws of the state of Indiana, and which may have been con- 
structed or commenced the construction of its street railroad so as to 
meet and connect with any other street railroad in an adjoining state 
at the boundary line of this state, shall have the power to make such 
contracts and agreements with any such street railroad constructed in 
an adjoining state for the transportation of passengers or for the use 
of its said street railroad, as to the board of directors may seem proper. 

[Acts 1899, p. 209. In force April 27, 1899.] 

1369. Heating of street cars. — 1. That every street car used for 
the transportation of passengers, shall during the months of Novem- 
ber, December, January, February and March of each year, be com- 
fortably heated by electricity or otherwise. 

1370. Penalty. — 2. Any corporation, company, officer, agent, or any 
person violating the provisions of this act shall, upon conviction, be 
fined in any sum not less than twenty-five dollars, nor more than one 
hundred dollars for each day such car is permitted to remain unpro- 
vided with heat, as provided in section one of this act. 



§ 1371 MISCELLANEOUS STATUTES AND PEOVISIONS. 858 

AETICLE 4.— GAS AND WATER COMPANIES. 

SEC. ^^^• 

1371. Marine railways— Gas pipes. 1375. Power of directors. 

1372. Gas and water-works companies. 1376. Effect of act. 

1373. Completion of unfinished canals— 1377. Water- works companies— Powers. 

Purposes— Record. 1378. Consent of town necessary. 

1374. Right'ofway. 1379. Existing companies. 

Gas and Avater companies— Manufacturing" and mining- companies.— R. S. 1894, eh. 
38 (§§5051-5123); Burns' Supp. 1897, ch. 38 (§§5051-5122/). 

Water-works companies —R. S. 1894, ch. 49 (§§5537-5540); Burns' Supp. 1897, ch. 
49, § 5537. 

See chapter note preceding § 1308, ante. 

[1 R. S. 1852, p. 358. In force May Q, 1853.] 

1371. Marine railways — Gas pipes. — 5. Corporations building 
steam-boats and other vessels shall have the right to construct marine 
railways, and all other necessary fixtures and machinery for repairing 
and launching the same; and gas light companies may lay pipes 
through the streets and alleys of any incorporated city or town, by 
repairing or making good any injury done thereto. R. S. 1894, § 5056. 

[Acts 1883, p. 17. In force February 21, 1883.] 

1372. Oas and water-works companies. — 1. That any gas-light or 
water-works company in any city or town of this state shall be author- 
ized and empowered to extend their pipes and mains beyond the cor- 
porate limits of such city or town, not to exceed a distance of five 
miles from the corporate limits of any such city or town, for the pur- 
pose of supplying persons or corporations with gas or water, and any 
such company shall be authorized and empowered to furnish and 
supply gas or water to any persons or corporations residing or located 
within five miles of the corporate limits of any such city or town. 
R. S. 1894, § 5057. 

[Acts 1852 S., p. 93. In force November 6, 1852.] 

1373. Completion of unfinished canals — Purposes — Record. — 1. 

Any and all persons, corporations or associations who may have pur- 
chased from the state of Indiana any of the unfinished canals of the 
state, or any part of either of them, and their successors and assigns, 
or any of them, may proceed to the completion of any such canal in 
whole or in part, or to the construction of any water-works or water- 
ways in connection therewith, either for navigation or hydraulic pur- 
poses or for the purpose of supplying cities or towns with water, upon 
complying with the regulations and subject to the restrictions in this 
act provided. But nothing in this act shall be so construed as to per- 
mit any such company to use such hydraulic works; or to take water 
from the canal for either of the purposes herein designated, unless 
such company shall first complete and place such canal in good navi- 
gable order from the point of commencement (or from the city of In- 



859 GAS AND WATER COMPANIES. § 1374 

dianapolis) of the Central canal to the point where it is proposed to 
construct hydraulic works, or take water for the supply of cities and 
towns as aforesaid: Provided, hoiuever, That no association or com- 
pany which may have succeeded, by purchase or otherwise, to the 
rights or interest of the state in any canal or the appurtenances there- 
unto belonging shall acquire or exercise any of the rights or powers 
specified in this act, until such association or company shall have 
executed to the state an additional bond, with such penalty and with 
such securities as may be designated and required by the governor, 
auditor and treasurer of state, or either of them, to indemnify the 
state against all liability on account of any leases heretofore granted 
b}^ the state of the water-power connected with such canal, if required 
so to do by the officers aforesaid or either of them; and such additional 
bond shall be required unless the state is already sufficiently indem- 
nified against or on account of such leases. R. S. 1894, § 4687. 

Lands appropriated for canal — Title, fee. — When land was appropriated for 
the purposes of a canal, the canal company acquired a fee. Blair v. Kiger, 111 Ind. 
193; Water Works Co. v. Burkhart, 41 Ind. 364; Nelson v. Fleming, 56 Ind. 310; 
Cromie v. Board, etc., 71 Ind. 208; City of Logansport v. Shirk, 88 Ind. 563; Brook- 
ville, etc., Co. v. Butler, 91 Ind. 134; Shirk v. Board, etc., 106 Ind. 573; Frank v. 
Evansville, etc., E. Co., Ill Ind. 132; Quick v. Taylor, 113 Ind. 540; Board, etc., v. 
Ft. Wayne Water Power Co., 17 App. 36. 

Construction of canal in public street— Abandonment of canal— Revival of orig-inal 
easement. — Where the state entered upon and constructed the Wabash and Erie canal 
in and through a public street in the town, now city, of Logansport, the easement of 
the public and abutting lot owners in such street was not thereby destroyed, but 
remained in abeyance during the occupancy and use of the street for the purposes of 
such canal ; and upon the subsequent abandonment of the canal, when the street was 
no longer occupied or used by or for such canal, the original easement of the public and 
the private rights of abutting lot owners at once revived and became effective in, on 
and over such street. City of Logansport v. Shirk, 88 Ind. 563. 

Purchasers— Bridg'es— Cities and towns.— Purchasers of the canal and its appurte- 
nances under foreclosure sale acquired a fee-simple title, subject to the burden of any 
easement of the public of which they were bound to take notice. The statutes did not 
impose on the trustees of the canal the duty of constructing and maintaining bridges in 
towns or cities, but did impose such duty as to bridges on state and county roads 
crossing the canal, and a purchaser succeeding to the rights of the state, takes the canal 
burdened with this duty. Board, etc., v. Ft. Wayne Water Power Co., 17 App. 36; 
Shirk V. Board, etc., 106 Ind. 573 ; Lowrey v. City of Delphi, 55 Ind. 250. 

As to the rights of the purchasers of the Central canal under deed by state, see 
Indiana, etc., Co. v. State, 53 Ind. 575. 

Bridg'e— Notice of easement.— The continuous use by the public, for nearly forty 
years, as a part of a highway, of a bridge constructed by the state, having a wagon way 
for public travel and a towing path for navigators of the canal, was possession and 
notice of the easement. Shirk v. Board, etc., 106 Ind. 573. 

1374. Right of way. — 5. Any such association or corporation shall 
have the right to take possession of, and appropriate to its own use or 
occupation, wholly or in part, for either of the purposes herein speci- 
fied, sufficient lands for a right of way, upon first making payment or 
tender of payment therefor, or for the damages occasioned to the owner 



§ 1375 MISCELLANEOUS STATUTES AND PROVISIONS. 860 

thereof, in accordance with the requirement of the constitution of this 
state; and the value of such property so appropriated, or the damages 
occasioned to the owners of any such property, shall be assessed, 
awarded, and adjudged, and payment or tender of payment therefor 
made, as provided in the act entitled ''An act to provide for the incor- 
poration of railroad companies, '' and the proper courts shall have the 
same jurisdiction and powers, and shall cause the same proceedings to 
be had in every such case; and the associations herein provided for 
shall, in all such cases, acquire all such rights in relation to the use, 
occupation and ownership of lands, rights of way for their uses and 
purposes, as are provided in the said act in regard to associations or- 
ganized for the construction of railroads, so far as the provisions of 
the said act can be made applicable to the purposes of this act. R. S. 
1894, § 4691. 

1375. Power of directors. — 8. In the construction of any of the 
unfinished canals of this state, it shall be lawful for the board of direct- 
ors of such company to direct the separation of the water-works or 
manufacturing privileges from the navigation purposes of the same, 
and to make such disposition of such parts thereof, as the board of 
directors may deem best for the interests of the company; provided 
said disposition does not injure or impair the right and franchises of 
any other company. R. S. 1894, § 4694. 

1376. Effect of act, — 9. Nothing in this act shall be so construed 
as to affect, in any manner, the charter of any water-works company 
heretofore granted. R. S. 1894, § 4695. 

1377. Water-works companies — Powers.~l, That vv^henever any 
company incorporated under the provisions of ch. 35, R. S. 1881, for 
the purpose of constructing and operating water works in or for any 
incorporated city or town, shall have obtained and shall hold by fran- 
chise, ordinance or resolution from said city or town, the right and 
privilege of operating such water works, and of laying necessary pipes, 
mains and conduits through the streets of said city or town, such cor- 
poration shall possess the powers and be subject to the liabilities and 
restrictions expressed in the following: 

First. To cause such examinations and surveys as may be neces- 
sary to the selection of the most advantageous positions and locations 
for the source of supply, the pumping stations, the settling basins, 
the filtering basins or tanks, the storage reservoir, the supply mains, 
the delivery reservoir, tank or stand-pipes, and the delivery mains, 
any or all of these, and the necessary lines of pipes connecting them; 
and for such purposes, by its officers, agents and servants to enter 
upon the lands and waters of any person, but subject to responsibility 
for all damages they shall do thereto. 

Second. To receive, hold and take such voluntary grants and dona- 
tions of real estate, money and other personal property, as shall be 
made to it, to aid in the construction, operation and maintenance of 
such water works; but the real estate thus received by voluntary grants 
shall be held and used for the purpose of such grants only. 



S61 GAS AND WATER COMPANIES. § 1377 

Third. To purchase, and by voluntary grants and donations receive 
and take, and by its officers, agents and servants, enter upon, take 
possession of, hold and use all such real estate, water rights and other 
property as may be necessary for the construction and operation of the 
said water works, and other accommodations necessary to accomplish 
such construction and operation; but not until the compensation to be 
made therefor as agreed upon by the parties or ascertained as here- 
with prescribed shall have been paid to the owner or owners thereof, or 
deposited as hereinafter directed, unless the consent of such owner be 
given to enter possession. 

Fourth. To determine and lay out the site for, construct and use the 
pumping stations with necessary accommodations and roads thereto, 
the settling basins, the filtering basins or tanks, the storage reservoirs, 
the delivery reservoirs, tanks or stand-pipes, and all the necessary ac- 
commodations thereto. 

Fifth. To lay necessary mains, conduits and pipes under and across 
any parcel of land, water course, road, highway or railroad, which the 
route thereof shall intersect, in such manner, however, as to afford 
security for life and property and to cause no interference to traffic: 
Provided, That such parcel of land, water course, road, highway or 
railroad shall be restored to the same conditions, as far as possible, as 
it was in at the time the excavations for said mains and pipes were 
commenced. 

Sixth. To enter upon such lands under or across which the said 
mains, pipes and conduits are laid, and to re-excavate the same for 
the purpose of change or repair, but subject to responsibility for all 
damage which it shall do thereto. 

Seventh. To use and distribute water from any lake or natural 
stream of water in the county in which said water works are to be 
built, and by permission from the board of commissioners of said 
county, to lay out and construct a dam across the same, upon paying 
the assessed damages caused thereby to the owner or owners so 
damaged. 

Eighth. To take up and change the route of the pipes, mains and 
conduits, to change the source of supply and remove the pumping 
stations, to vacate and reconstruct the various reservoirs, and to 
change the position of the tanks, stand-pipes and other appurtenances 
belonging to said water works company, whenever it shall be deemed 
necessary or advantageous to do so. [As amended, Acts 1895, p. 243. 
In force March 11, 1895.] Burns' Supp. 1897, § 5088. 

The above is an amendment of § 1 of the act of March 6, 1889, and the same section 
of the same act was sought to be amended by an act approved February 25, 1897, Acts 
1897, p. 62. Said last act is omitted because beheved to be clearly void upon the prin- 
ciple that an act professing to amend a section of a statute which has already been 
superseded by amendment is unconstitutional and void. Blakemore v. Dolan, 50 Ind. 
194; Brocaw v. Board, etc., 73 Ind. 543; Eversole v. Chase, 127 Ind. 297; Hall v. 
Craig, 125 Ind. 523 ; Feibleman v. State, 98 Ind. 516. 

Incorporation of water companies. — Companies organized for the purpose of con- 
structing, owning, and operating water-works systems can incorporate only under the 



§ 1378 MISCELLANEOUS STATUTES AND PROVISIONS. 862 

act for the incorporation of manufacturing and mining associations ; R. S. 1894-, §§ 5537- 
5540, provide for the organization, not of companies to construct, own and operate, but 
of companies having purchased systems of water-works at sales under judgment or de- 
crees of courts of competent jurisdiction within the state. Clow v. Brown, 134 Ind. 287. 

iippropriation of land— "Water privilegfes— New appraisement— Exceptions to.— 
A new appraisement in a proceeding by a water- works company to appropriate to its use 
real estate and water privileges, is made in the same manner as the first appraisement; 
and where exceptions are duly filed to the new appraisement, it is reversible error for 
the court to refuse to hear the exceptions. Werley v. Huntington, etc., Co., 138 Ind. 
148. 

Liability to riparian owner. — If a water-works company causes an extraordinary di- 
version of water in a lake in such quantity as to be unreasonable, to the damage of the 
riparian owner, such owner may recover the damage. Valparaiso City Water Co. v. 
Dickover, 17 App. 233. 

1378. Consent of town necessary.— -9. This act shall not grant 
the powers and privileges herein conferred to any corporation other 
than such as have, by ordinance or otherwise, obtained legal consent 
and full right of way for the operation of water-works and the laying 
of the necessary pipes, mains and conduits along and through the 
streets, alleys, avenues and public grounds of the city or town in 
which such water-works are operated or located, from the common 
council of such city or board of trustees of said town. [As amended, 
Acts 1895, p. 243. In force March 11, 1895.] Burns' Supp. 1897, 
§ 5096. 

1379. Existing companies. — 10. Any water-works company here- 
tofore incorporated and now existing, which holds or shall obtain 
franchise in this act, shall have the powers and privileges conveyed 
herein and be limited by the restrictions and liabilities set forth in 
this act. R. S. 1894, § 5097. 

Natural g-as and oil companies— Rig-Ms of way, etc.— For cases involving questions 
as to proceedings to acquire right of way to lay pipe lines in highways, the rights of ad- 
jacent land-owners, power of county commissioners to grant consent, etc., see Board, 
etc., V. Indianapolis, etc., Co., 134 Ind. 209 ; Consumers', etc., Co. v. Iluntsinger, 14 App. 
156; Indiana, etc., Co. v. Hutsinger, 12 App. 285. 

ARTICLE 5.— TELEPHONE COMPANIES. 

SEC. SEC. 

1380. Seal — Powers. 1382. Duty to supply applicants impar- 

1381. Powers. tially. 

Telephone companies —R. S. 1894, ch. 47 (§§5517-5529); Bums' Supp. 1897, ch. 47, 
§ 5529. 
See chapter note preceding § 1308, ante. 

1380. Seal — Powers. — 7. Such company may have a common 
seal, which may be altered at pleasure ; and shall have power to ac- 
quire, by purchase or otherwise, and hold and convey, such real and 
personal estate as may be proper for the purpose of erecting or main- 
taining its lines of telephone and the appliances and buildings requi- 
site for its business ; and shall have the right to acquire such real 



863 TELEPHONE COMPANIES. § 1381 

estate and rights of wa}^, as may be necessary for its business, under 
the writ of assessment of damages, as fully as if the act in relation to 
said writ were incorporated in this act and made part of the same. 
The life of a corporation organized under this act shall be limited to 
fifty'years. R. S. 1894, §5523. 

1381. Powers.— 8. Any telephone company organized under this 
act shall have power to lease, or attach to other telephone lines or 
exchanges by lease or purchase. R. S. 1894, § 5524. 

[Acts 1885, p. 151. In force April 8, 1885.] 

1382. Duty to supply applicants impartially. — 2. Every telephone 
company with wires wholly or partly within this state, and engaged 
in a general telephone business, shall within the local limits of such 
telephone companies' business supply all applicants for telephone con- 
nections and facilities with such connections and facilities without dis- 
crimination or partiality, provided such applicants comply or offer to 
comply with the reasonal3le regulations of the company; and no such 
company shall impose any conditions or restrictions upon any such 
applicant that are not imposed impartially upon all persons or com- 
panies in like situation, nor shall such companies discriminate against 
any individual or company engaged in any lawful business, or be- 
tween individuals or companies engaged in the same business, by re- 
quiring as a condition for furnishing such facilities that they shall 
not be used in the business of the applicant, or otherwise for any law- 
ful purpose. R. S. 1894, § 5529. 

The act of 1885 (Acts 1885, p. 227) regulating the use of telephones and fixing the 
rates thereof was repealed by the act of 1889 (Acts 1889, p. 49). 

"Telephone" defined. — The word "telephone," as used in the act of April 13, 1885 
(Acts 1885, p. 227), was intended to designate, and did in fact refer to an apparatus 
composed of all the usual and necessary instruments for the transmission and reception 
of telephonic messages, and not to a single instrument only. The word "telephone" 
having become a term of art, evidence is admissible to explain its proper meaning. 
Hockett V. State, 105 Ind. 250, 261. 

The word "telephone," as used in the act of April 13, 1885 (Acts 1885, p. 227), has 
reference to an organized apparatus, or combination of instruments, usually in use in 
transmitting and receiving telephonic messages, and not to a single instrument technic- 
ally known as a telephone. Central, etc., Co. v. Bradbury, 106 Ind. 1, 9; Central, etc., 
Co. V. State, 118 Ind. 194, 206. 

Common carrier. — The telephone is an instrument of commerce, and persons or cor- 
porations engaged in the general telephone business are common carriers of news in 
the sense in which a telegraph company is a common carrier. Hockett v. State, 105 
Ind. 250, 258; Central, etc., Co. v. Bradbury, 106 Ind. 1, 8; Central, etc., Co. v. 
State, 118 Ind. 194, 206; Central, etc., Co. v. Fehring, 146 Ind. 189. 

The rule that requires a common carrier to serve all, so far as able, with impartiality, 
is applicable to a telephone company, engaged in a general telephone business. Cen- 
tral, etc., Co. V. Bradbury, 106 Ind. 1, 8; Central, etc., Co. v. Swoveland, 14 App. 
341; Central, etc., Co. v. Fehring, 146 Ind. 189. 

Contract agfainst its own neg'lig-ence.— The rule that a common carrier can not re- 
lieve itself by contract from liability, on account of its own negligence, applies to tele- 
phone companies. Central, etc., Co, v. Swoveland, 14 App. 341. 



§ 1382 MISCELLANEOUS STATUTES AND PEOVISIONS. 864 

Toll service. — A telephone company is required, under the toll service, to send a 
messenger for a person wanted at the telephone, if he hves within a reasonable distance 
from the receiving station. Central, etc., Co. v. Swoveland, 14 App. 341. 

Connections and facilities for use. — Telephone companies are not only required to 
furnish an applicant the instrument, and properly connect the same with its exchange, 
but it is also their duty to supply all the connections and facilities necessary for the use 
of the instrument. Central, etc., Co. v. Fehring, 146 Ind. 189. 

Mandamus— Discrimination— Statutory proviso.— A person or corporation engaged 
in operating telephone lines, furnishing connections, facilities and service to business 
houses, persons and companies, can be compelled by mandate, on the petition of one 
discriminated against, to furnish to such a one the same service that it furnishes to 
others, independent of any statutory provision against discrimination. Central, etc., 
Co. V. State, 118 Ind. 194, 207; Central, etc., Co. v. State, 123 Ind. 113, 116. 

Statute violated— Penalty— Mandamus.— The fact that the statute prescribes a pen- 
alty for the violation of its provisions does not abridge the right of an aggrieved party 
to compel the telephone company, by mandamus, to furnish him with the service to 
which he is entitled. Central, etc., Co. v. State, 118 Ind. 194, 209. 

Property devoted to public use.— In legal contemplation, all the instruments and 
appliances used by a telephone company in the prosecution of its business are devoted 
to a public use, and property thus devoted to such use becomes a legitimate subject of 
legislative regulation. Hockett v. State, 105 Ind. 250, 258; Eastman v. State, 109 Ind. 
278; City of Kushville v. Eushville, etc., Co., 132 Ind. 584. 

The legislature has power to regulate, as in the act of April 13, 1885 (Acts 1885, p. 227), 
the price which a telephone company, engaged in a general telephone business, may 
charge for the use of its instruments, notwithstanding the patented quality of the latter. 
Central, etc., Co. v. Bradbury, 106 Ind. 1, 6. 

Statute — When violated. — One who, being the owner and operator of a telephone 
line, in violation of the provisions of the act of April 13, 1885 (Acts 1885, p. 227, re- 
pealed by Acts 1889, p. 49) , charges and collects a monthly rental in excess of three 
dollars, the rate fixed by such act for one telephone, is subject to the penalty therein 
prescribed. Johnson v. State, 113 Ind. 143, 147. 

Extra charg'es for non-subscribers. — A fixed charge of one dollar per month, in ex- 
cess of the three dollars allowed by the statute, -for non-subscribers, which is charged 
and collected whether the telephone is used by non-subscribers or not, and without re- 
gard to the number of such persons who may use it, is a violation of the law. Johnson 
V. State, 113 Ind. 143, 148. 

Eental charg'es— Toll stations.— A company doing a general telephone business in 
this state can not evade the acts of April 8 and April 13, 1885 (Acts 1885, p. 227), pre- 
scribing the duties of such companies and regulating the rental to be charged for the 
use of telephones by ceasing to do a rental business and establishing pubhc toll sta- 
tions, but under such acts any person, within the local limits of the business of such a 
company in a town or city, has the right to demand and receive a telephone, with con- 
nections, facilities and service, at the rate per month fixed therein. Central, etc., Co. 
V. State, 118 Ind. 194, 208. 

Act of April 8, 1885, valid. — The state has the right to prescribe the maximum 
price which a telephone company shall charge for the use of its telephones, and the 
act of April 13, 1885 (Acts 1885, p. 227), limiting the rental price of such instruments, 
and also the amount which shall be collected for conversations between cities and vil- 
lages, is constitutional. Hockett v. State, 105 Ind. 250, 254; Central, etc., Co. v. Brad- 
bury, 106 Ind. 1, 9; Johnson v. State, 113 Ind. 143, 145; Central, etc., Co. v. State, 
118 Ind. 194, 207. 

Lines extending- into other states.— The acts of 1885, relating to telephone com- 
panies, apply merely to the service to be provided to persons within this state, and they 



865 



CRIMES AND MISDEMEANOKS. 



§1382 



are, therefore, not open to the objection that they are void as attempting to regulate 
interstate commerce, although the lines of a company doing business in this state may 
extend into other states. Central, etc., Co. v. State, 118 Ind. 194, 209. 

Patent— xlct of April 13, 1885. — The fact that the telephone and appliances are 
articles patented under the constitution and laws of the United States, while vesting in 
the patentee, his heirs and assigns, the exclusive right, for a limited time, to make, use 
and vend the tangible property brought into existence by the application of the dis- 
covery covered by the letters-patent, does not preclude state regulation of the property 
thus brought into existence. Hockett v. State, 105 Ind. 250,256; New v. Walker, 108 
Ind. 865, 367; Hankey v. Downey, 116 Ind. 118. 

Leg'islative Intention.— There being nothing in the act of April 13, 1885 (Acts 1885, 
p. 227), or in other laws, which requires a telephone company to construct a new line 
against its will, or to maintain an old line longer than it may feel justified in doing, evi- 
dence that it could not construct or continue to use a particular line at the price limited 
without loss can not be considered in determining the legislative intention in passing 
such act. Hockett v. State, 105 Ind. 250, 258. 

Municipal service— Extra territorial lines.— In an action by a resident of a city to 
compel a telephone company to furnish him with telephonic service within such city, 
an answer that the lines of the company extend outside of the state, and that by fur- 
nishing the plaintiff with an instrument and service he would be placed in communica- 
tion with points outside of the state, is bad. Central, etc., Co. v. State, 118 Ind. 194, 
210. 

ARTICLE 6.— CEIMES AND MISDEMEANORS. 



SEC. 




SEC. 


1383. 


Crimes not punishable by city or 


1406 




town. 


1407. 


1384. 


Driving on sidewalk. 


1408 


1385. 


Misdemeanor. 


1409 


1386. 


Vehicles not to stand on street. 


1410 


1387. 


Obstructing highway, etc. 




1388. 


Obstructing highway with cars. 


1411 


1389. 


Obstructing highway. 


1412 


1390. 


Failing to give signals. 


1413 


1391. 


Signals at crossings. 


1414. 


1392. 


Penalty for failure. 


1415 


1393. 


Suits for. 


1416 


1394. 


Damages. 


1417 


1395. 


Penalty to school fund. 


1418 


1396. 


Railroad company to destroy weeds 


1419 




and thistles. 


1420 


1397. 


Failure — Action of debt. 


■ 1421 


1398. 


Waiting-rooms. 




1399. 


Penalty. 


1422 


1400. 


Waiting-rooms and closets. 


1423. 


1401. 


Penalty. 




1402. 


Street railway prohibited— Monu- 


1424 




ment place. 


1425. 


1403. 


Vestibule street cars. 


1426. 


1404. 


Violating act, penalty. 


1427. 


1405. 


Penalty for selling or offering to sell 
vote. 


1428. 



Reward for conviction. 

Acts repealed. 

Prosecutions — Limitation. 

Stealing public records. 

Officer stealing or destroying rec- 
ords. 

Altering records. 

Embezzlement of public funds. 

Embezzlement by officers. 

Embezzlement by treasurers. 

Embezzlement of public fundo. 

Bribery of public officers. 

Bribery of officer. 

Presenting false claim. 

Officer acting without qualifying. 

Officer interested in public contracts. 

Breaking quorum in common coun- 
cil. 

Conviction of felony vacates office. 

Injuring telegraph or telephone 
poles or wires. 

Telephone disclosure. 

Not providing fire escape 

Not providing out-swinging doors. 

Running horses in towns. 

Interfering with electric plants — 
Pen alt V. 



CiT. AND To.— 55 



SEC. 




SEC. 


1429. 


Altering gas connections. 


1433. 


1430. 


Making gas connections without 


1434. 




consent. 


1435. 


1431. 


Eefusal to deliver gas mixtures. 


1436. 


1432. 


Setting fire to gas. 





§ 1383 MISCELLANEOUS STATUTES AND PROVISIONS. 866 



Penalty. 

Natural gas — Preventing waste. 

Jumbo burners — When lighted. 

Penalty. 

Crimes.— R. S. 1894, ch. 5 (§§ 1975-2304) ; Burns' Supp. 1897, ch. 5 i§§ 1980-2354). 
See chapter note preceding § 1308, ante. 

[Acts 1881, p. 114. In force September 19, 1881.] 

1383. Crimes not punishable by city or town. — 67. Whenever any 
act is made a public offense against the state by any statute and the 
punishment prescribed therefor, such act shall not be made punisha- 
ble by any ordinance of any incorporated city or town; and any ordi- 
nance to such effect shall be null and void, and all prosecutions for 
any such public offense as may be within the jurisdiction of the au- 
thorities of such incorporated cities or towns, by and before such au- 
thorities, shall be had under the state law only. R. S. 1894, § 1709. 

See ante, § 118. 

This section is constitutional. Jett v. City of Richmond, 78 Ind. 316. 

3Iisdemeanor — Invalidity of ordinance. — TV^here an act is made a misdemeanor 
punishable under the criminal law of the state, a city or town can not enact an ordi- 
nance prescribing a penalty for the same offense. City of Indianapolis v. Higgins, 141 
Ind. 1 ; City of Indianapolis v. Huegele, 115 Ind. 581 ; Jett v. City of Richmond, 78 Ind. 
316; City of Frankfort y. Aughe, 114 Ind. 77. 

Intoxicating' liquors. — This section does not apply to an ordinance providing a pun- 
ishment for selling intoxicating liquors without first procuring a license from the town 
or city, that not being an offense under the state. City of Frankfort v. Aughe, 114 Ind. 
77; Clevenger v. Town of Rushville, 90 Ind. 258; Zeller v. City of Crawfordsville, 90 
Ind. 262. 

Interfering" with police officer. — Cities can not make and enforce a penal ordinance 
for interfering with a member of the police force created by the metropolitan police act 
of 1883. Indianapolis v. Huegele, 115 Ind. 581. 

Prior to the enactment of this section the same act might be made punishable by 
both the state and municipal authorities. Waldo v. Wallace, 12 Ind. 569; Ambrose v. 
State, 6 Ind. 351; Williams v. City of Warsaw, 60 Ind. 457; Sloan v. State, 8 Blackf. 
361 ; City of Hammond v. New York, etc., R. Co., 5 App. 526, 535. 

Obstruction of street.— The wrongful obstruction of a public street or sidewalk of a 
city is a misdemeanor punishable under the criminal law of the state, and a city can 
not enact an ordinance prescribing a penalty for any one who obstructs such street. 
City of Indianapolis v. Higgins, 141 Ind. 1. 

[Acts 1867, p. 194. In force March 9, 1867.] 

1384. Driving on sidewalk. — 1. It shall be unlawful for any per- 
son to ride or drive upon the brick, stone, plank, or gravel sidewalk 
of any town or village, or upon any similar sidewalk for the use of 
foot-passengers by the side of any public highway in this state, unless 
in the necessary act of crossing the same. R. S. 1894, § 4398. 

See aute, §1200, clause 11. 

The statute making it a misdemeanor to ride or drive upon a brick, stone, plank or 
gravel sidewalk, being a penal one, is to be strictly construed, and does not apply to 



867 CRIMES AND MISDEMEANORS. § 1385 

the act of riding or driving upon sidewalks constructed of other materials than brick, 
stone, plank or gravel. Town of Whiting v. Doob, Ind. Sup. Ct., February 2, 1899. 

Bicj'cle— City and town ordinances.— xi bicycle is a vehicle, and riding a bicycle 
upon the brick, stone, plank or gravel sidewalks of a toAvn or city is a public offense 
against the state, and such offense is not punishable under a city or town ordinance; 
but under an ordinance prohibiting the riding of a bicycle on the sidewalks upon a 
proper complaint and proof a person may be punished for riding a bicycle upon a side- 
walk other than one of brick, stone, plank or gravel. Town of Whiting v. Doob, Ind. 
Sup. Ct., February 2, 1899; Bybee v. State, 94 Ind. 443. 

Bicycle. — A bicycle is a vehicle, and entitled to the rights of the road, but has no 
right to the use of the sidewalk, and riding the same upon the sidewalk is unlawful un- 
der this section. Mercer v. Corbin, 117 Ind. 450 ; Holland v. Bartch, 120 Ind. 46. 

31isdemeanor— Driving" across a sidewalk.— Any one driving on a sidewalk of a city 
or town, unless to cross it, is guilty of a misdemeanor under this section, and may be 
punished. The city or town can not make, by ordinance, the same act a penal offense. 
City of Indianapolis v. Higgins, 141 Ind. 1. 

Town — Includes city. — The word "town" as used in this section is generic and in- 
cludes cities. City of Indianapolis v. Higgins, 141 Ind. 1. 

[Acts 1859, p. 185. In force August 6, 1859.] 

1385. Misdemeanor. — 3. Any person who shall violate any of the 
provisions of this act shall be deemed guilty of a misdemeanor, and, 
upon conviction thereof, shall be fined in any sum not exceeding three 
dollars. R, S. 1894, § 4399. 

[Acts 1893, p. 310. In force March 3, 1893.] 

1386. Yehicles not to stand on street, — 9. It shall be unlawful for 
any vehicle to be located, stationed or kept on said Circle street (in 
city of Indianapolis), to be used for hire as a common carrier in the 
transportation of persons, merchandise or any kind of property, and 
the penalty for each such offense shall be a fine of not less than five 
dollars nor more tlian ten dollars. R. S. 1894, § 8372. 

1387. Obstructing highway, etc. — 63. Whoever, in any manner, 
wrongfully obstructs any public highway, tow-path, canal, turnpike, 
plank or coal road, or injures any toll or other bridge, or toll-gate, 
culvert, embankment, or lock; or makes any breach in any canal; or 
injures any material used in the construction of such roads or canal, 
shall be fined in any sum not more than five hundred dollars, to which 
may be added imprisonment in the county jail not more than three 
months nor less than ten days. R. S. 1894, § 2043. 

Municipal corporations.— Municipal corporations can not authorize the permanent 
obstruction of a street. City of Tell City v. Bielefeld, 20 App. 1 ; State v. Berdetta, 
73 Ind. 185; Adams v. Ohio Falls Oar Co., 131 Ind. 375; Sims v. City of Fi-ankfort, 79 
Ind. 446 ; Pettis v. Johnson, 56 Ind. 139. 

Temporary obstruction for building purposes may be authorized. Wood v. Mears, 
12 Ind. 515; City of Indianapolis v. Doherty, 71 Ind. 5; City of Warsaw v. Dunlap, 
112 Ind. 576. 

Cities and towns— Ordinance— Criminal offense.— The obstruction of sidewalks and 
streets in cities and towns is a criminal offense, punishable under state law. Cities 
and towns can not by ordinance prescribe punishment for same offense. City of Indian- 



§ 1388 MISCELLANEOUS STATUTES AXD PROVISIONS. 868 

apolis V. Higgins, 141 Ind. 1; State v. Berdetta, 73 Ind. 185; Bybee v. State, 94 Ind. 
443. 

Criminal and civil statutes construed.— E. S. 1894, § 2043, describing the offense of, 
and providing a penalty for, tlie obstruction of a public highway, is not repealed by 
§ 23 of an act approved March 2, 1883 (E. S. 1894, § 6837). The one provides a crimi- 
nal prosecution for obstructing a highway, the other a civil remedy for the benefit of 
the road fund of the proper district. Harvey v. State, 5 App. 422, 423. 

Way over street— Question of fact.— A public street is a public highway, and the 
wrongful obstruction of a public street is a misdemeanor and is punishable as such, un- 
der the provisions of E. S. 1894, § 2043, and the erection or maintenance of any struct- 
ure for private use, such as an inclosed passage way over and above a public street or 
highway, which obstructs or may obstruct such street or highway, is a misdemeanor 
within the meaning of the statute, and is punishable as a public nuisance. AVhether or 
not the particular structure, so erected or maintained, obstructs or may obstruct wrong- 
fully the public street or highway, is a question of fact, in everj^ case, for the court or 
Jury trying the cause. Bybee v. State, 94 Ind. 443, 446. 

Corporation may be prosecuted.— A corporation may be prosecuted criminally for 
obstructing a public highway. E. S. 1894, §§ 1970 and 2043; State v. Baltimore, etc., 
E. Co., 120 Ind. 298, 299; Cleveland, etc., E. Co. v. Wynant, 119 Ind. 539. 

Removal of obstruction— Mandate.— The fact that a corporation may be compelled 
by mandate to remove an obstruction placed by it in a public highway is not a defense 
to a prosecution for maintaining such obstruction. State v. Baltimore, etc., E. Co., 120 
Ind. 298, 299. 

A railroad company which leaves its cars standing in a public highway is guilty of an 
unlawful obstruction thereof, under E. S. 1894, § 2043, notwithstanding it may leave a 
portion of the center of the roadway open for the passage of vehicles. Pittsburgh, etc., 
E. Co. V. Kitley, 118 Ind. 152, 156. 

Supervisors of highways have no authority over the streets of incorporated towns 
and cities, and may be guilty of obstructing the same while attempting to make repairs 
thereof. State v. Mainey, 65 Ind. 404. 

Criminal action — Charg'e. — As to what will constitute a sufficient charge for obstruct- 
ing a highway in a criminal action, see State v. Buxton, 31 Ind. 67 ; State v. Baker, 58 
Ind. 417; State v. Stewart, 66 Ind. 555; Nichols v. State, 89 Ind. 298; Bybee v. State, 
94 Ind. 443 ; State v. Berdetta, 73 Ind. 185. 

Penalty. — A fine of $25 for obstructing a highway is not excessive. Hoch v. State, 
20 App. 64. 

1388. Obstructing highway with cars. — 254. Whoever being a 
conductor or other person having charge of or running a railroad 
train carrying or used for carrying freight permits or suffers the 
same or any car or locomotive engine composing the same to re- 
main standing across any public highway, street, alley or farm 
crossing, or who whenever it becomes necessary to stop such train 
across any public highway, street, alley or farm crossing, fails to 
leave a space of sixty feet across such public highway, street, alley or 
farm crossing, shall be fined not more than twenty dollars nor less 
than three dollars. [As amended, Acts 1893, p. 296. In force May 
18, 1893.] R. S. 1894, §2291. 

Indictment — Duplicity. — An indictment which charged that the defendant, boing 
then and there a conductor, etc., did " unlawfully permit and suffer" the train "to re- 
main and stand across " the street, and did " fail and neglect to leave a space of sixty 
feet across said street," is not bad for duplicity. State v. Malone, 8 App. 8. 



869 CRIMES AND MISDEMEANORS. § 1389 

An indictment, against the conductor of the train is not bad for failure to state the 
name of the raih-oad. State v. Malone. 8 App. 8. 

The leaving of cars in any portion of a public highway is a violation of this section. 
Pittsburgh, etc., R. Co. v. Kitley, 118 Ind. 152. 

Injury to runaway horse — Liability. — Where a railroad company leaves its cars in 
highway in violation of this section, and a horse through fright, without the fault of 
the driver, becomes uncontrollable and runs away, and is killed in attempting to leap 
through the coupled cars, the company is liable. Grimes v. Louisville, etc., E. Co., 3 
App. 573. 

A public street a public higliway.— A public street is a public highway, and the 
wrongful obstruction of a public street is a misdemeanor and is punishable as such. 
By bee v. State, 94 Ind. 443. 

1389. Obstriictiiig highway ,—260. Whoever, being the conductor 
of any passenger train, allows the same to remain standing across 
any public highway or street, to the hindrance of travel, for a longer 
time than five minutes, shall be fined in any sum not more than fifty 
dollars nor less than five dollars. R. S. 1894, § 2297, 

1390, Failing to give signals.- — 262. AVhoever, having charge of 
a locomotive engine upon any railroad, fails or neglects when such 
engine is approaching any road crossing to sound the engine whistle 
at a distance of not more than one hundred nor less than eighty rods 
from such crossing, shall be fined not more than fifty dollars, nor 
less than ten dollars; and if any person be injured or killed by reason 
of such failure or neglect, he shall be imprisoned in the state prison 
not more than fourteen years, nor less than two years. But nothing 
herein contained shall be so construed as to interfere with any ordi- 
nance or by-law that has been or may be passed by any city or town 
regulating the management or running of engines or trains VN^ithin 
such city or town. R. S. 1894, § 2299. 

Police reg'ulations.— Enactments of this character are within the police power of the 
legislature and are valid. Pittsburg, etc., E. Co. v. Brown, 67 Ind. 45; State v. Indi- 
ana, etc., R. Co., 133 Ind. 69; 3 Elhott Railroads, § 1114. 

Failure to give sig-nals— Xeg-lig-eiice.— A failure to give signals required by law on 
approaching a road crossing, is such negligence as gives a cause of action against the 
railroad company by persons w'ho are on the track and are injured without fault on 
their part. It is conclusive evidence of negligence. Terre Haute, etc., R. Co. v. Brun- 
ker, 128 Ind. 542; Ohio, etc., R. Co. v. Hill, 117 Ind. 56; Ivens v. Cincinnati, etc., R. 
Co., 103 Ind. 27; Chicago, etc., R. Co. v. Boggs, 101 Ind. 522; Indiana, etc., R. Co. v. 
Barnhart, 115 Ind. 399; Lake Shore, etc., R. Co. v. Boyts, 16 App. 640, Baltimore, 
etc., R. Co. V. Walborn, 127 Ind. 142; Hadley v. Lake Erie, etc., R. Co., 21 App. 675; 
Chicago, etc., R. Co. v. Fenn, 3 App. 250, 253; 3 Elliott Railroads, §1114. 

In such case the omission to give the signals is conclusive evidence of negligence ; 
the company will be liable for injuries to animals upon highway crossings, in the ab- 
f^ence of negligence upon the part of the owner. Chicago, etc., R. Co. v. Fenn, 3 App. 
250. 

Failure to give sig'iial— Neg-lig-eiice per se.— It is negligence per se for a railroad 
company to fail to give the statutory signals at public crossings, but to entitle an injured 
party to recover he must show that such negligence was the proximate cause of the in- 
jury, and that he was not guilty of contributory negligence. Baltimore, etc., R. Co. v. 



§ 1391 MISCELLANEOUS STATUTES AND PROVISIONS. 870 

Obnoyer, 149 Ind. 524; Baltimore, etc., E. Co. y. Young, 146 Ind. 374. But the rule 
that the plaintiff must allege and prove the absence of contributory negligence has now 
been changed by statute, negligence of the plaintiff being made matter of defense, prov- 
able under the general denial. See Acts 1899, p. 58. 

A i)erson approaching a railroad crossing has a right to assume that the company v^'ill 
obey the law, by giving the required signals of an approaching train ; and if such per- 
son, after having exercised due care, and employed his senses of seeing and hearing, to 
ascertain if a train is approaching, and thereby avoid danger, can neither see nor hear 
an advancing or moving train, he is justified in presuming that he can pass over the 
crossing in safety. Baltimore, etc., E. Co. v. Conoyer, 149 Ind. 524. 

When may refrain from giving' sig'nal. — If, in approaching a crossing, the engineer 
should see and know that a traveler upon the highway is in imminent peril, fi*om a 
frightened team, on account of the approaching train, it is his duty to refrain from giv- 
ing the statutory signals. Louisville, etc., E. Co. v. Stanger, 7 App. 179. 

[Acts 1881 S., p. 590. In force September 19, 1881.] 

1391. Signals at crossings. — 1. It shall be the duty of all railroad 
companies operating in this state to have attached to each and every 
locomotive engine a whistle and a bell, such as are now in use or may 
be hereafter used by all well-managed railroad companies; and the en- 
gineer or other person in charge of or operating such engine upon the 
line of any such railroad shall, when such engine approaches the 
crossing of any turnpike or other public highway in this state, and 
when such engine is not less than eighty nor more than one hundred 
rods from such crossing, sound the whistle on such engine distinctly 
three times and ring the bell attached to such engine continuously 
from the time of sounding such whistle until such engine shall have 
fully passed such crossing: Provided, That nothing herein shall be so 
construed as to interfere with any ordinance that has been or may 
hereafter be passed by any city or incorporated town in this state reg- 
ulating the management or running of such engines or railroads with- 
in the limits of such city or incorporated town: Provided^ further, That 
all penalties incurred under the act of March 29, 1879, are hereby re- 
pealed. R. S. 1894, § 5307. 

Constitutional. — This statute is a poUce regulation, clearly within the scope of legis- 
lative authority, and is constitutional and valid. Pittsburgh, etc., E. Co. v. Brown, 67 
Ind. 45; St^te v. Indiana, etc., E. Co., 133 Ind. 69. 

Statutes construed. — This section requires the whistle upon a locomotive engine to 
be sounded upon approaching any highy/ay crossing, and the bell to be rung until the 
crossing is reached. The succeeding section makes the company hable in damages to 
any j>erson who shall be injured in person or property by reason of the omission of 
8uch signals. Pittsburgh, etc., E. Co. v. Shaw, 15 App. 173. 

Such liability will not exist if the person injured fails to use diligence to discover the 
approach of the train. Miller v. Terre Haute, etc., E. Co., 144 Ind. 323. 

Failure to give sisfnals— Neg-lig'ence per se.— The failure to give signals of the ap- 
proach of a train at a street crossing is negligence per se, and fixes the liability of the 
railroad company to one who, without concurring neghgence, is injured thereby. Lake 
Shore, etc., E. Co. v. Boyts, 16 App. 640; Hadley v. Lake Eiie, etc., E. Co., 21 App. 
675; Louisville, etc., E. Co. v. Eush, 127 Ind. 545; Eailway Co. v. Butler, 103 Ind. 81; 
Eailroad Co. v. Fenn, 3 App. 250; Baltimore, etc., E. Co. v. Walborn, 127 Ind. 142; 



871 CRIMES AND MISDEMEANORS. § 1392 

Terre Haute, etc., R. Co. v. Brunker, 128 Ind. 542; 3 Elliott Railroads, § 1114; Elliott 
Roads and Streets, pp. 605, 606. 

It is negligence for a railroad company to run a locomotive and train of cars across a 
public street in a populous city without sounding the whistle or ringing the bell, and 
without giving any warning of its approach. Aurelius v. Lake Erie, etc., R. Co., Ind. 
Sup. a., March 16, 1898. 

[Acts 1879, p. 173. In force May 31, 1879.] 

1392, Penalty for failure. — 2. Every engineer or other person in 
charge of or operating any such engine, who shall fail or neglect to 
comply with the provisions of the preceding section, shall be held 
personally liable therefor to the state of Indiana, in a penalty of not 
less than ten dollars nor more than fifty dollars, to be recovered in a 
civil action, at the suit of said state, in the circuit or superior court 
of any county wherein such crossing may be located; and the com- 
pany in whose employ such engineer or person may be, as well as 
the person himself, shall be liable in damages to any person or his 
representatives who may be injured in property or person, or to any 
corporation that may be injured in property, by the neglect or failure 
of such engineer or other person as aforesaid. R. S. 1894, § 5308. 

See a7ite, § 1390. 

1398. Suits for. — 3. All actions for the recovery of the penalties 
prescribed in the preceding section shall be prosecuted in the name of 
the state of Indiana, by the prosecuting attorney of any county where 
such failure or neglect, as aforesaid, may occur; and such prosecuting 
attorney shall be entitled to recover and receive for his services in 
such cases, as a docket fee, twenty dollars in each case, to be taxed 
as part of the costs in such cases. R. S. 1894, § 5309. 

1394. Damages, — 4. The amount of damages which may be re- 
covered under the provisions of this act, whether for bodily injuries 
or death, shall be within the discretion of the court or jury trying the 
cause: Provided, That in case of death such damages shall not exceed 
the sum of five thousand dollars. R. S. 1894, § 5310. 

The act of April 7, 1881 (R. S. 1894, § 285), repealed by implication so much of this 
section as limits the amount of damages that may be recovered to five thousand dollars, 
and damages to the amount of ten thousand dollars may be recovered. Pittsburg, etc., 
H. Co. V. Burton, 139 Ind. 357. 

1395. Penalty to school fund, — 5. All fines and penalties collected 
under the provisions of this act shall be appropriated to the benefit of 
the common school fund of the state; and the clerk of the court wherein 
such fines and penalties may be assessed and reco.vered shall, upon 
receipt thereof, pay the same over to the treasurer of said county, for 
the purpose aforesaid. R. S. 1894, § 5311. 

[Acts 1889, p. U6. In force May 10, 1889.] 

1396. Railroad company to destroy weeds and thistles. — 1 That 
all railroad corporations doing business in this state shall, between the 



§ 1397 MISCELLANEOUS STATUTES AND PROVISIONS. 872 

first day of July and the twentieth day of August in each year, cause 
all thistles, burrs, docks and other noxious weeds growing on lands 
occupied b}^ them in any city, village or township of this state, to be 
cut down and destroyed. R. S. 1894, § 5399. 

1397, Failure — Action of debt. — 2. In case any railroad company 
shall refuse or neglect to comply with the requirements specified in 
the first section of this act, such company shall be liable in a penalty 
of twenty-five dollars, to be prosecuted for in an action of debt by any 
person feeling himself aggrieved. Said suit may be brought before 
any justice of the peace in the county, who shall require of the com- 
plainant surety to pay costs in case he fails to maintain his action; 
summons mav be served 'on any agent or officer of the company. R. 
S. 1894, § 5400. 

[Acts 1891, p. 70. In force June 3, 1891.] 

1398, Waiting-rooms. — 1. That all railroad companies operating 
lines through cities and towns of two hundred and fifty population or 
more shall provide and maintain suitable waiting-rooms together with 
separate water closets for men and women for the convenience of the 
traveling public, and shall keep such rooms open for a period of not 
less than one hour next preceding the arrival of all passenger trains 
that are allowed by schedule to stop at such stations. R. S. 1894, 
§ 5188. 

1399, Penalty. — 2. Any railroad company failing to comply with 
the provisions of the above shall be guilty of a misdemeanor and be 
fined for not more than three hundred dollars and not less than twenty 
dollars. R. S. 1894, § 5189. 

Indictment — Insufficiency of. — The indictment for failing to keep open waiting- 
rooms is insuflScient, which fails to aver that the defendant had provided and main- 
tained such waiting-rooms. State v. Cleveland, etc., R. Co., 137 Ind. 75. 

[Acts 1895, p. 99. In force June 28, 1895.] 

1400, Waiting-rooms and closets. — 1. That all railroad companies 
operating lines through cities and towns of one hundred population or 
more shall provide and maintain suitable waiting-rooms together with 
separate water-closets for men and women, for the convenience of the 
traveling public, and shall keep such rooms open for the period of not 
less than one hour next preceding the arrival of all passenger trains 
that are allowed by schedule or flagging, to stop at all stations. Burns' 
Supp. 1897, § 5189a. 

See ante, § 1398. 

1401, Penalty. — 2. Any railroad company failing to comply with 
the provisions of the above section shall be guilty of a misdemeanor 
and be fined in any sum not more than five hundred dollars and not 
less than twenty dollars for each offense. Burns' Supp. 1897, § 51896. 



873 CRIMES AND MISDEMEANORS. § 1402 

[Acts 1893, p. 310. Ill force March 3, 1893.] 

14:02. street railway prohibited — Monument place. — 8. It shall be 
unlawful to build and operate or maintain a street railway track and 
cars, or tramway, upon the street, or any part thereof, surrounding 
Monument place, said street being known as Circle street, in the city 
of Indianapolis, and the penalty for each such offense shall be a fine 
of not less than one hundred dollars nor more than five hundred dol- 
lars for each da}^ such violation of the law shall continue, R. S. 1894, 
§ 8371. 

[Acts 1895, p. 157. In force June 28, 1895.] 

1403. Yestibnle street cars. — 1. That every electric street car, 
other than trail, cars which are attached to motor cars, shall, during 
the months of November, December, January, February and March of 
each year, be provided, at the forward end thereof, with a screen con- 
structed of glass or other materials, which ,shall fully and completely 
protect the driver, or motorman, or gripman, or other persons stationed 
on such forward end and driving, guiding or directing the motive 
power by which such cars are propelled, from wind and storm. Burns' 
Supp. 1897, § 5479a. 

1404. Yiolating act, penalty. — 2. Any corporation, company, of- 
ficer, agent, or any person violating the provisions of this act shall, 
upon conviction, be fined in any sum not less than twenty-five dollars, 
nor more than one hundred dollars for each day each such car belong- 
ing to, used, or controlled by anj such corporation, company, ofiicer, 
agent, or other person is permitted to remain unprovided with the 
screen required in section one of this act; and it is hereby made the 
duty of the prosecuting attorney of each county where such cars are, 
or may be used, to institute the necessary proceedings to enforce the 
provisions of this act Burns' Supp. 1897, § 54796. 

[Acts 1899, p. 381. In force April 27, 1899.] 

1405. Penalty for selling or offering to sell vote. — 1. That whoso- 
ever sells, barters or offers to sell or barter his vote, or offers to refrain 
from voting for any candidate or candidates for any office at any gen- 
eral, special or primary elections or convention either for money or 
property, or thing of value, or for any promise or favor or hope of re- 
ward, or who shall accept any money, property or thing of value, 
wath the promise or pretense of voting for, or refraining from voting 
for any candidate or candidates, shall upon conviction therefor be dis- 
franchised and rendered incapable of holding any office of profit or 
trust, for a period not less than ten years nor more than twenty years. 

1406. Reward for conviction. — 2. Any person or persons having 
knowledge or information of the violation of the provisions of this 
act, who shall procure or furnish or cause to be procured or furnished 
the testimony necessary to secure a conviction of the person or per- 
sons violating the same shall be entitled to a reward of $100 payable 
out of the treasury of the county in which such conviction shall be 



§ 1407 MISCELLANEOUS STATUTES AND PROVISIONS. 874 

had and the right to such reward shall be a valid claim against such 
county. 

1407. Acts repealed. — 3. Sections three and four of an act en- 
titled ''An act concerning elections and nominating conventions, to 
maintain political purity, and prescribing the punishment for any vi- 
olation thereof, approved March 9, 1889,'* and an act entitled ''An 
act to secure the purity and freedom of the ballot and to repeal sec- 
tions one, two, three and five of an act entitled an act to protect the 
ballot box, to procure fair elections, to prevent the purchase or sale of 
votes, to provide means of proving such offenses prescribing the pen- 
alty therefor and repealing sections 268 and 269 of an act concerning 
public offenses, and their punishment," approved April 14, 1881, be- 
ing sections 2184 and 2185 of the Revised Statutes of 1881, and repeal- 
ing all laws and parts of laws in conflict with the provisions of this 
act, approved March 9, 1889, and "An act concerning public offenses 
and their punishment," approved March 8, 1897, and all laws and 
parts of laws in conflict with the provisions of this act are hereby re- 
pealed. 

1408. Prosecutions — Limitation. — 1. Prosecutions may be brought, 
under this act, at any time, within six years after the commission of 
the offense. 

[Acts 1881 S., p. 174. In force September 19, 1881.] 

1409. Stealing public records, — 36. Whoever steals, takes, and 
carries away the whole or any part of any record, record-book, or or- 
der book authorized to be made by any law of this state, or belonging 
or pertaining to any court of record, justice of the peace, or any state, 
county, township, or municipal ofhce or officer, or any other public 
record, document, or proceeding of any court of record, justice of the 
peace, state, county, township, or municipal office or officer; or any 
paper, pleading, exhibit, or other writing filed within or by any such 
court of record, justice of the peace, office or officer, is guilty of felony, 
without reference to the value of the same, and, upon conviction 
thereof, shall be imprisoned in the state prison not more than four- 
teen years nor less than six months, fined not exceeding one thousand 
dollars and disfranchised and rendered incapable of holding any office 
of trust or profit for any determinate period. R. S. 1894, § 2014. 

1410. Officer stealing or destroying records, — 37. Whoever, being 
an officer or his deputy, having the custody of any record, book, doc- 
ument, paper, or proceeding specified in the foregoing section, steals, 
or fraudulently takes away, secretes, withdraws, or destroys any such 
record, book, document, paper, or proceeding filed or deposited wdth 
him, upon conviction thereof, shall be imprisoned in the state prison 
not more than fourteen 3^ears nor less than two years, fined not ex-' 
ceeding one thousand dollars and disfranchised and rendered incapa- 
ble of holding any office of trust or profit for any determinate period. 
R. S. 1894, § 2015. 

1411. Altering records. — 38. Whoever, maliciously, mischiev- 



875 CRIMES AND MISDEMEANORS. § 1412 

ously, or fraudulently alters, defaces, injures, mutilates, or destroys 
the whole or any part of any record authorized to be made by any law 
of this state, belonging or pertaining to any court of record, justice of 
the peace, or any state, county, township, or municipal office or 
officer ; or any other public record so authorized ; or any paper, plead- 
ing, exhibit, or other writing filed with, in, or by any such court, 
office, or officer, shall be imprisoned in the state prison not more than 
fourteen years nor less than six months, fined not exceeding one thou- 
sand dollars and disfranchised and rendered incapable of holding any 
office of trust or profit for any determinate period. R. S. 1894, § 2016. 
1412. Embezzlement of puWic fimds. — 41 . Whoever being charged, 
or in any manner entrusted, with the collection, receipt, safe keeping, 
transfer^ or disbursement of any money, funds, securities, bonds, 
choses in action, or other property belonging to or under the control 
of the state or of any state officer, or belonging to or under the control 
of any county, civil or school township, city, or town in this state, 
converts to his own use, or to the use of any other person or persons, 
corporation or corporations, in any manner whatever, contrary to law; 
or uses, by way of investment in any kind of property; or loans, either 
with or without interest; or deposits with any person or persons, cor- 
poration or corporations, contrary to law; or exchanges for other funds, 
except as allowed by law, any portion of such money, funds, securi- 
ties, bonds, choses in action, or other property, is guilty of embezzle- 
ment, and upon conviction thereof, shall be imprisoned in the state 
prison not more than twenty-one years nor less than two years, fined 
not exceeding double the value of the money or other property em- 
bezzled, and disfranchised, and rendered incapable of holding any 
office of trust or profit for any determinate period. R. S. 1894, § 2019. 

Statute construed.— Any treasurer, trustee, or other custodian of public funds, who 
uses such funds by way of investment in any kind of property, or who loans them, 
either with or without interest, is guilty of embezzlement. Winchester, etc., Co. v. 
Veal, 145 Ind. 506. 

County treasurer— Loaning' county funds.— A county treasurer, who loans the 
county funds in violation of this section, can not maintain an action for the recovery of 
tJ^e same, although the county itself might maintain such action. Winchester, etc., Co. 
V- Veal, 145 Ind. 506. 

Indictment— Deputy county treasurer— Statute of limitations.— An indictment of 
a deputy county treasurer for embezzlement of the county funds is not bad for failure 
to state the time at which the crime was committed, for the reason that time is not of 
the essence of the offense. Armstrong v. State, 145 Ind. 609. 

M13, Embezzlement by officers, — 42. Any county treasurer, county 
auditor, sheriff, clerk, or receiver of any court, township trustee, justice 
of the peace, mayor of a city, constable, marshal of any city or incorpo- 
rated town, or any officer or agent of any county, civil or school town- 
ship, city, or incorporated town, who shall fraudulently fail or refuse 
at the expiration of the term for which he was elected or appointed, 
or at any time during such term, when legally required by the proper 
person or authority, to account for, deliver, and paj^ over to such 



§ 1414 MISCELLANEOUS STATUTES AND PROVISIONS. 876 

person or persons, as may be lawfully entitled to receive the same, all 
moneys, choses in action or other property which may have come into 
his hands by virtue of his said office, shall be deemed guilty of embez- 
zlement, and, upon conviction thereof , shall be imprisoned in the state 
prison for any period of not more than five years nor less than one 
year, and fined in any sum not exceeding one thousand dollars, and 
rendered incapable of holding any office of trust or profit for any de- 
terminate period. R. S. 1894, §^2020. 

Not repealed. — This section was not repealed by the act of March 5, 1883 (Acts 1883, 
p. 106), modifying the case of State v. Mason, 108 Ind. 48. State v. Wells, 112 Ind. 237. 

Indictment. — An indictment against a county treasurer for embezzlement need not 
state the fund to which the money embezzled belonged. Hollingsworth v. State, 111 
Ind. 289. 

An indictment against an officer for failing to pay over money to his successor must 
allege that such failure was either unlawful or felonious. Stropes v. State, 120 Ind. 
562. 

In charging an officer for failure to pay over money required by law to be paid at 
stated times, such facts must be stated as will show a clear violation of his duty. State 
V. Record, 56 Ind. 107. 

An indictment against an officer for failing to pay over money to his successor must 
allege that the term of such officer has expired, and that he failed to pay over to his 
successor a sum received by such officer during his term, and which he should have 
paid over. State v. Hebel, 72 Ind. 361. 

Statute of limitations. — Prosecutions are barred in two years after the expiration of 
the term of the officer, and a demand made after the expiration of such term will not 
extend the time for beginning the prosecution. State v. Mason, 108 Ind. 48. 

Demand. — No demand need be made by the successor of an officer for the payment 
of the funds embezzled before a prosecution for the offense. Hollingsworth v. State, 
111 Ind. 289. 

14:14. Embezzlement by treasurers. — 49. If the treasurer of state, 
or any county treasurer or city treasurer, or the treasurer of any town 
shall use the money of any particular fund, or the money appropriated 
by law for any particular purpose, to pay any warrant drawn upon 
any other fund or appropriation, he shall be deemed guilty of a mis- 
demeanor, and, upon conviction thereof, shall be imprisoned in the 
county jail not more than six months nor less than one month, and 
fined in any sum not more than five thousand dollars nor less than 
one hundred dollars. R. S. 1894, § 2028. 

M15. Embezzlement of public fnnds, — 50. A member of the com- 
mon council of any city or of the board of school trustees of any city 
or town, or the board of trustees of any town, or the mayor, president, 
officer, agent, attorney, clerk, or servant of such corporation, or any 
township trustee, who knowingly diverts, appropriates, or applies any 
funds or part of any fund raised under any law by taxation or other- 
wise, to any other use or purpose than that for which it was raised or 
appropriated; or who knowingly diverts, appropriates or applies, or 
assists in diverting, appropriating, or applying, any money, borrow^ed 
on any bond of the corporation, or any part of the proceeds of such 
bond, to any other use or purpose than that for which such loan was 



877 CRIMES AND MISDEMEANORS. § 1416 

made or bond issued, or to any use or purpose than is authorized by 
the charter or law governing such corporation, shall be deemed guilty 
of embezzlement, and, upon conviction thereof, shall be imprisoned 
in the state prison not more than five years nor less than one year, 
fined not more than one thousand dollars nor less than one dollar, and 
disfranchised and rendered incapable of holding any office of trust or 
profit for any determinate period. R. S. 1894, § 2029. 

1416. Bribery of public officers, — 104. Whoever corruptly gives, 
promises or ofiers to any member, officer, clerk, or employe of the 
general assembly, or of either house thereof, or any state or other of- 
ficer, agent, or employe of the state, or person holding any office of 
trust or profit under the laws of this state, or any officer intrusted with 
the administration of justice, or prosecuting attorney, either before or 
after his election, qualification, appointment, or employment, any 
money or valuable thing; or corruptly offers or promises to do any act 
beneficial to any such person, to influence his action, vote, opinion, or 
judgment in any matter pending or that might legally come before 
him; and whoever, being a member, officer, clerk, or employe of the 
general assembly, or state or other officer, agent, or employe of the 
state, or person holding any office of trust or profit under the laws of 
this state, or any officer intrusted with the administration of justice, 
or prosecuting attorney, either before or after his election, qualifica- 
tion, appointment, or employment, solicits or accepts any such money 
or valuable thing, to influence him with respect to his official duty, or 
to influence his action, vote, opinion, or judgment in any matter pend- 
ing or that might legally come before him, shall, upon conviction 
thereof, be imprisoned in the state prison not more than fourteen years 
nor less than two years, fined not exceeding ten thousand dollars, and 
disfranchised and rendered incapable of holding any office of trust or 
profit for any determinate period. R. S. 1894, § 2096. 

Statute construed — Indictment. — As to what is a suificieiit charge of bribery against 
the township trustee, see Glover v. State, 109 Ind. 391 ; State v. McDonald, 106 Ind. 233. 

A prosecuting attorney was an officer intrusted with the administration of justice un- 
der the statute of 1852. State v. Henning, 33 Ind. 189; Collier v. Waugh, 64 Ind. 456. 

Under the statute of 1852 the receiving of a promissory note by an officer to influence 
his action was not bribery, as the note was worthless. State v. Walls, 54 Ind. 561. 
See Collier v. Waugh, 64 Ind. 456. 

An indictment for bribery should distinctly state and charge that the officer charged 
with being bribed, accepted, or agreed to accept, for his official action, some amount of 
money or article of value. State v. Stephenson, 83 Ind. 246. 

The offering to township trustees of money or property to induce them to purchase 
school supplies is bribery under this section. State v. McDonald, 106 Ind. 233 ; Glover 
V. State, 109 Ind. 391. 

1417. Bribery of officer. — 145. Any person who shall pay or 
agree to pay any money, or deliver anything of value, to any state of- 
ficer, count)^ commissioner, township or town trustee, mayor or com- 
mon councilman of any city, school trustee of any city, or any other 
person holding a lucrative office or appointment or agency under the 



r 1418 MISCELLANEOUS STATUTES AND PROVISIONS. 878 

constitution or laws of this state, for the purpose of procuring any 
contract for the construction of any state-house, court-house, school- 
house, bridge or other public building, or the performance of any 
work or furnishing of any material for the use of the state, or of any 
county, township, town, or city in this state, over which such person 
has any official jurisdiction; or who, having any such contract, shall 
pay or agree to pay to any of the officers or persons above named any 
money, percentage, reward, drawback, premium, or profits on such 
contract, upon conviction thereof, shall be fined not more than five 
thousand dollars nor less than three hundred dollars, and imprisoned 
in the state prison not more than fourteen years nor less than two 
years, and disfranchised and rendered incapable of holding any office 
of trust or profit for any determinate period. R. S. 1894, § 2138. 

1418. Presenting false claim. — 289. Whoever, knowing the same 
to be false or fraudulent, makes out or presents for payment, or certi- 
fies as correct to the general assembly or either house thereof, or to 
the auditor of state or other state officer, or to the county auditoi- or 
board of commissioners or other officer of any county, or to the treas- 
urer or other accounting officer of any city or town, or to the trustee 
or accounting officer of any civil or school township, or school city or 
town, any claim, bill, note, bond, account, pay-roll, or other evidence 
of indebtedness, false or fraudulent, for the purpose of procuring the 
allowance of the same, or an order foT the payment thereof out of the 
treasury of said state, county, civil or school township, city or town; 
and whoever, knowing the same to be false or fraudulent, receives 
payment of any such claim, account, bill, note, bond, pay-roll, voucher 
or other evidence of indebtedness from the treasurer of state, or the 
treasurer or other paying officer of any count}- , civil or school town- 
ship, city or town, shall be imprisoned in the state prison not more 
than fourteen years, nor less than two years, and fined not more than 
one thousand dollars nor less than ten dollars. R. S. 1894, § 2353. 

1419. Olficer acting without qualifying. — 139. Whoever, having 
been elected or appointed to any office, or being the deputy of any offi- 
cer so elected or appointed, performs any of the duties of such office 
without having taken and subscribed the oath prescribed by law, or 
before having given and filed the bond required of him and in the 
manner prescribed by law, shall be fined not more than one thousand 
dollars nor less than ten dollars. R. S. 1894, § 2131. 

1420. Officer interested in public contracts. — 144. Any state offi- 
cer, county commissioner, township or town trustee, mayor or a com- 
mon councilman of any city, school trustee of any town or city, or 
their appointees or agent, or any person holding any appointing 
power, or any person holding a lucrative office under the constitution 
or laws of this state, who shall, during the time he may occupy such 
office or hold such appointing power and discharge the duties thereof, 
be interested, directly or indirectly in any contract for the construction 
of any state house, courthouse, school-house, bridge, public building, or 
work of any kind erected or built for the use of the state, or any county, 



879 CRIMES AND MISDEMEANORS. § 1421 

township, town, or city in the state, in w^hich he exercises any official 
jurisdiction; or wdio shall bargain for or receive any percentage, 
drawback, premium or profits, or money whatever, on any contract 
or for the letting of any contract or making any appointment wherein 
the state, or any county, township, town, or city is concerned — upon 
conviction thereof, shall be fined not more than five thousand dol- 
lars nor less than three hundred dollars, and imprisoned in the state 
prison not more than fourteen years nor less than two years, and dis- 
franchised and rendered incapable of holding any office of trust or 
profit for any determinate period. R. S. 1894, § 2136. 

Offense defined.— To constitute an offense under this section the officer must become 
interested in a contract of the city for the construction of a pubUc work, and it is not 
an offense merely to be interested in the construction of such work. State v. Feagans, 
148 Ind. 621. 

Indictment. — The indictment must state, by direct averments, facts constituting the 
offense as defined by the statute, and such a degree of certainty must be shown by its 
averments as to fully inform the accused of the charge preferred, and the court and jury 
of the crime of which, upon the trial, he is to be either convicted or acquitted. State v. 
Feagans, 148 Ind. 621. 

Contracts void. — All contracts executed in contravention of the provisions of this 
section are void. Wingate v. Harrison Tp., 59 Ind. 520; Case v. Johnson, 91 Ind. 477; 
Benton v. Hamilton, 110 Ind. 294; New v. Walker, 108 Ind. 365. 

1421. Breaking quorum in common council, — 153. Wiienever it 
shall happen that a quorum shall not be present or voting in the com- 
mon council of any city of the state of Indiana, at any stated or 
special meeting thereof, by reason of the willful or intentional absence 
of any member or members of the same, or of his or their refusal to 
vote, or to answer to their names on any vote or roll call, any member 
of such common council so refusing to vote or to be present or to an- 
sw^er to his name, with the intent to defeat, delay, or obstruct legisla- 
tion or legislative action or the business of such common council, 
shall be deemed guilty of a misdemeanor, and, upon conviction thereof, 
shall be fined not more than one thousand dollars nor less than one 
hundred dollars. R. S. 1894, § 2146. 

[Acts 1899, p. 188. In force April 27, 1899.] 

1422. Conviction of felony vacates office. — 37. In case any state, 
county, township, municipal or other public officer shall be convicted 
of felony, the office held by such officer shall be vacated by such judg- 
ment of conviction, and the vacancy existing therein shall be imme- 
diately filled by appointment as provided by law : Provided, That in 
case of appeal to the appellate or supreme courts such office shall not 
be vacated pending such appeal. 

[Acts 1881 S., p. 174. In force September 19, 1881.] 

1423. Injuring telegraph or telephone poles or wires. — 55. Who- 
ever maliciously or mischievously injures any telegraph pole or tele- 
phone pole, or the wire or any part of the apparatus thereof, upon 



§ 1424 MISCELLANEOUS STATUTES AND PROVISIONS. 880 

conviction thereof, shall be fined not more than five hundred dollars 
nor less than five dollars, and imprisoned in the county jail not more 
than six months nor less than thirty days. R. S. 1894, § 2035. 

[Acts 1883, p. 9. In force June 5, 1883.] 

1434, Telephone disclosure. — 1. That any operator, clerk, servant, 
messenger or employee of any telephone company doing business in 
this state who discloses the contents of any dispatch or message, or 
any conversation had between persons while using the line of any 
telephone company, except to a court of justice or to a person entitled 
to know the same, shall be fined not more than five hundred dollars 
nor less than ten dollars. R. S. 1894, § 2249. 

[Acts 1881 S., p. 174. In force September 19, 1881.] 

1425. Not providing fire escape. — 241. Whoever, being the owner, 
lessee, superintendent or manager of any hotel or place of entertain- 
ment for transient guests or boarders, in any city of five thousand 
inhabitants or upwards, which is more than two stories in height, 
conducts, operates or carries on such hotel or place of entertainment, 
without providing sufiicient and suitable fire escapes or ladders at con- 
venient places in the stories of such building above the second, for the 
speedy escape of such guests or boarders in case of fire, and without 
causing written or printed notices of the location and manner of using 
such fire escapes or ladders to be posted in a conspicuous place in the 
room of each guest or boarder, shall be fined not more than fifty dol- 
lars nor less than five dollars for each day of such failure. R. S. 1894, 
§ 2272. 

1426. Not providing out-swinging doors, — 243. Whoever, being 
the owner, manager, lessee, trustee or person having the charge of 
any theater, opera-house, museum, college, seminary, church, school- 
house or other public building, refuses or neglects to cause all the 
doors thereof constructed for the purpose of ingress or egress, whether 
inner or outer doors, to be so hung that the same shall swing out- 
wardl}^, shall be fined in any sum not exceeding one thousand dollars 
nor less than ten dollars, to which may be added imprisonment in 
the county jail for any period not exceeding six months; provided, that 
this section shall not apply to the outer doors of one story churches 
and school-houses. [As amended, Acts 1891, p. 111. In force March 
5, 1891.] R. S. 1894, § 2276. 

1427. Running horses in towns, — 248. Whoever runs horses, 
mares, or geldings, or shoots at a mark, within the limits of any 
town or village, or along or across any street thereof, upon convic- 
tion, shall be fined not more than three dollars. R. S. 1894, § 2281. 

Town— City — Shooting*. — The word town is generic, comprehending city, and hence 
the law which makes shooting in a town or village a misdemeanor applies to cities. 
Flinn v. State, 24 Ind. 286; see City of Indianapolis v. Higgins, 141 Ind. 1. 



881 CRIMES AND MISDEMEANORS. § 1428 

[Acts 1899, p. 58. In force April 27, 1899.] 

1428, Interfering with electric plants — Penalty, — 1. That, who- 
ever unlawfully and intentionally injures or destroys or permits to be 
injured or destroyed, any meter, pipe, conduit, wire, line, post, lamp 
or other apparatus belonging to a company engaged in the manufact- 
ure or sale of electricit}^ for lighting, heat, power or other purposes, 
or unlawfully and intentionally prevents an electric meter from duly 
registering the quantity of electricity supplied, or in any way inter- 
feres with its proper action or just registration, or without the con- 
sent of such company unlawfully and intentionally diverts any elec- 
tric current from any wire of such company, or otherwise unlawfully 
and intentionally uses or causes to be used, without the consent of 
such company, any electricity manufactured or distributed by such 
company, shall be deemed guilty of a misdemeanor and shall for every 
such offense, be punished by fine not exceeding $100 or imprisoned 
not exceeding one year, or by both such fine and imprisonment. 

[Acts 1891, p. 382. In force June 3, 1301.] 

14:29. Altering gas connections. — 1. It is hereby declared to be 
unlawful for any person, in any manner whatever, to change, extend 
or alter, or cause to be changed, extended, or altered any service or 
other pipe or attachment of any kind connecting or through which 
natural or artificial gas is furnished from the gas mains or pipes of 
any person, company or corporation without first procuring from said 
person, company or corporation written permission to make such 
change, extension or alteration. R. S. 1894, § 2311. 

14:30. Making gas connections without consent. — 2. It is hereby 
declared to be unlawful for any person to make, or cause to be made 
any connection or reconnection, with the gas mains or service pipes 
of any person, company, or corporation, furnishing to consumers nat- 
ural or artificial gas, or to turn on or off, or in any manner interfere 
with any valve or stop-cock, or other appliance belonging to such per- 
son, company or corporation, and connected with its service or other 
pipes, or to enlarge the orifice of mixers, or to use natural gas for 
heating purposes except through mixers, without first procuring from 
such person, company or corporation a written permit to turn on or 
off such stop-cock or valve, or to make such connections or reconnec- 
tions, or to enlarge the orifice of mixers, or to use gas for heating 
without mixers, or to interfere with the valves, stop-cocks or other ap- 
pliances of such person, company or corporation, as the case may be. 
R. S. 1894, § 2312. 

14:31, Refusal to deliver gas mixers, — 3. It is hereby declared to 
be unlawful for any person or persons to whom any mixer or mixers 
or other appliances may be or may have been loaned or rented by any 
person, company or corporation for the purpose of furnishing gas 
through the same, to retain possession, or to refuse to deliver such 
mixer or mixers, or other appliances to the person, company or corpora- 

ClT. AND To.— 56 



§ 1432 MISCELLANEOUS STATUTES AND PROVISIONS. 882 

tion entitled to the possession of the same, after such person, company 
or corporation shall have been entitled to the possession of the same, 
or to sell, loan, or in any manner dispose of the same to any person 
or persons, other than said person, company or corporation entitled 
to the possession of the same. R. S. 1894, § 2313. 

M32, Setting fire to gas. — 4. It is hereby declared to be unlawful 
for any person or persons to set on fire any gas escaping from wells, 
broken or leaking mains, pipes, valves, or other appliances, used by 
any person, company or corporation in conveying gas to consumers, 
or to interfere in any manner with the wells, pipes, mains, gate boxes, 
valves, stop-cocks or other appliances, machinery or property of any 
person, company or corporation engaged in furnishing gas to con- 
sumers, unless employed by or acting under the authority and direc- 
tion of such person, company or corporation engaged in furnishing 
gas to consumers. R. S. 1894, § 2314. 

1433. Penalty, — 5. Any person violating any provision of this act 
shall, upon conviction, be fined in any sum not less than five dollars 
nor more than one hundred dollars for such offense. R. S. 1894, 
§ 2315. 

[Acts 1891, p. 55. In force June 3, 1891.] 

1434, Natural gas — Preventing waste. — 1. The use of natural gas 

for illuminating purposes, in what are known as flambeau lights, is a 
wasteful and extravagant use thereof, and is dangerous to the public 
good, and it shall therefore be unlawful for any company, corporation 
or person, for hire, pay or otherwise, to use natural gas for illuminat- 
ing purposes in what are known as flambeau lights in cities, towns, 
highways or elsew^iere: Provided, That nothing herein contained shall 
be construed as to prohibit any such company, corporation or person 
from the necessary use of such gas in what are known as ''jumbo'' 
burners enclosed in glass globes, or lamps or by the use of other burn- 
ers of similar character so inclosed, as will consume no more gas than 
said "jumbo" burners. R. S. 1894, § 2316. 

Act constitutional. — The above act is constitutional. Townsend v. State, 147 Ind. 
624. 

Offense continuous. — The offense created by this section is a continuous one, and a 
conviction of the offense bars another prosecution for all violations of the statute by 
the defendant prior to the conviction. Townsend v. State, 147 Ind. 624. 

1435. Jumbo burners — When lighted, — 2. All gas lights in said 
"jumbo*' burners and glass globes, or lamps used in all streets and 
public highways shall be turned off not later than 8 o'clock in the 
morning each day such lights or burner is used, and the same shall 
not be lighted between the hours of 8 o'clock a. m. and 5 o'clock p. m. 
R. S 1894, § 2317. 

1436, Penalty, — 3 Any one violating any of the provisions of 
section (1) of this act, shall be deemed guilty of a misdemeanor, and 
upon conviction shall be fined in any sum not exceeding twenty-five 



883 



PKISONS POLICE MATRON STOLEN PROPERTY. 



1437 



dollars, and for a second offense may be fined in any sum not exceed- 
ing two hundred dollars. R. S. 1894, § 2318. 



ARTICLE 7.— PRISONS— POLICE MATRON— STOLEN PROPERTY. 



SEC. 

1437. 

1438. 
1439. 
1440. 
1441. 
1442. 
1443. 

1444. 
1445. 
1446. 

1447. 
1448. 
1449. 
1450. 
1451. 
1452. 



SEC. 

County boards may establish work- 1453. 

house. 1454. 

Superintendent. 1455. 

Commitment. 1456. 

Transfer from jail. 1457. 

Prisoners kept at labor. 1458. 

Cities and towns may commit. 1459. 

Quarterly reports — Receipts — Ex- 1460. 

penses. 

Inspection by grand jury. 1461. 

Visitation. 1462. 

Duties of county physician and su- 1463. 

perintendent. 

L'^se of city or town work-house. 1464. 

Punishment of prisoners. 1465. 

Credit for work. 1466. 

"When females may be sentenced. 1467. 

Trustees to enforce judgment. 1468. 
Inspection. 



Fines for lewdness. 

Fines for gambling. 

Proceeds of forfeited recognizances. 

Mayor's accounts — vStatements. 

Reports. 

Police matron in certain cities. 

Authority of matron — Removal. 

Accommodations — Acts as jailer — 

Salary. 
Attendance in courts. 
Qualifications— Recommendations. 
Stolen property received by police 

officer — Disposition . 
Sale of unclaimed property. 
Perishable property — Sale of. 
Proceeds of sale — Disposition of. 
Payment to owner of property. 
AVhen act not applicable. 



[Acts 1879 S., p. 247. In force May 31, 1879.] 

1437, County boards may establish work-house. — 1. It shall be 
lawful for the board of commissioners of any county in this state, in 
its discretion, whenever it shall deem it advisable, to use property 
then owned by it, or to purchase or provide a tract of land, in the 
name of the county, and thereon to establish and maintain a work- 
house—the expense to be paid out of the general fund of the county. 
R. S. 1894, § 8330. 

1438, Superintendent. — 2. When such work-house is established 
in any county, the board of commissioners thereof shall employ some 
proper person, to be called the " superintendent of the county work- 
house," to take charge of the same upon such terms, and under such 
restrictions, rules and regulations as such board may from time to 
time adopt: Provided, That if the work-house be established upon the 
county poor farm, then the superintendent of the county asylum maybe 
required to take charge and control of the work-house. R. S. 1894, 
§ 8331. 

1439, Commitment,— 3. When such work-house is ready for oc- 
cupancy, the board of commissioners shall give notice thereof, by an 
order entered upon its records and such other notice as it may deem 
proper; and, thereupon, any court, judge, mayor, magistrate, justice 
of the peace or other officer, may sentence any person to the county 
work-house instead of the county jail; which fact shall be stated in 
the record of the judgment, and set forth on the face of the mUtivms 
or other writ issued to the officer whose duty it may be to execute the 



§ 1440 MISCELLANEOUS STATUTES AND PKOVISIONS. 884 

same. In every such case, such officer shall deliver such person to 
the superintendent of the county work-house, who shall receive the 
prisoner, and hold and restrain him of his liberty for the period he 
may have been sentenced by such court, unless sooner released by a 
pardon, remission, or the judgment of a proper court: Provided^ That 
in all cases of commitment to such work-house, the judge, mayor, 
magistrate or justice of the peace who made such commitment is au- 
thorized and empowered to remit the penaltv imposed by him, for good 
cause shown. R. S. 1894, § 8332. 

IMO. Transfer from JaiL— 4. Whenever any person shall have 
been sentenced to imprisonment in the county jail, he may be trans- 
ferred to the vv^ork-house at any time during the period of his impris- 
onment, under such orders, rules and regulations as the board of com- 
missioners of such county may, from time to time, adopt; which or- 
ders, rules and regulations, when adopted, the sheriff, jailer or other 
person having the custody of the county jail, shall obey; and for his 
neglect or refusal to so obey, he shall be fined by any court of the 
county having criminal jurisdiction, in any sum not less than fifty 
dollars, to which may be added imprisonment in the work-house not 
exceeding sixty days!' R. S. 1894, § 8333. 

14r41« Prisoners kept at labor,— -5. All prisoners and other persons 
held in the work-house shall, as far as may be consistent with their 
age, sex and ability, be kept at hard labor in such manner as the 
board of commissioners shall deem most advantageous to such county, 
and under such rules and regulations as such board may, from time 
to time, prescribe, such labor to be performed in or about the work- 
house, or upon any public wharf, street, alley, highway or thorough- 
fare within the county, or upon any other work or public improve- 
ment which such board may deem for the welfare of the citizens of 
such county, or at such other labor, and in such manner, as such 
board may deem best. Such work shall be done under the direction 
and supervision of the superintendent of the work-house; and for this 
purpose the board of commissioners may meet, at any time, and make 
all proper orders, which shall be spread upon the records of such 
court. R. S. 1894, § 8334. 

1M2. Cities and towns may commit. — 6. Any person sentenced to 
imprisonment, or committed for a failure to pay or replevy any fine, 
forfeiture and costs, under any ordinance or law of any town or city 
in such county having a work-house established, may be committed to 
such work-house, under such contracts and agreements as such town 
or city and the board of commissioners of such county may, from 
time to time, make. Such prisoners, at all times, shall be subject to 
the rules and regulations adopted for the conduct and management of 
the work-house. R. S. 1894, § 8335. 

1443, Quarterly reports— Receipts — Expenses.— 7. The superin- 
tendent of the work- house shall make a detailed report, in writing, to 
the board of county commissioners, on the first day of each regular 
term of such court, showing the income received and the expense in- 



SS5 PRISONS FOLICE MATRON STOLEN PROPERTY. § 1444 

curred for the last preceding quarter. All sums received by the 
superintendent, from any and every source, shall be paid by him to 
the county treasurer, who shall give him a receipt therefor, to be re- 
tained by him, and a duplicate thereof, which said superintendent 
shall file with said report. All expenses incurred shall be paid by the 
treasurer out of the county funds, on a proper warrant drawn by the 
auditor, on the order of the board, as in other cases, and not other- 
wise. All moneys so received or paid out by the treasurer shall be 
paid into and out of the general county fund. Such treasurer and 
auditor shall keep an accurate account of the income and outlay to be 
known as the county work-house account. R. S. 1894, § 8336. 

144:1. Inspection by grand jmy,--"8. The grand jury, at each 
term of the court of such county for w^hich they are sitting, shall 
make personal inspection of the condition of the work-house, as to the 
sufficiency of the same for the safe-keeping of prisoners, their conven- 
ient accommodation and health, the manner in which the same has 
been kept, and how the prisoners have been kept at labor since the 
last term. They shall further inquire as to the income received and 
expense incurred since the last term; may examine the books and 
papers of the v\'Ork-house, and the records and files of any county 
office or officer, and may send for books and papers anywhere within 
the state. The foreman may administer all oaths necessary in making 
such inquiries, and for any refusal to attend or testify, the court for 
which they are sitting may punish the offender for contempt, in the 
manner provided by law. Such grand jury shall make report in 
Yv^riting, to the court for which they are sitting, which shall be spread 
upon the records thereof, and a duplicate shall be filed with the board 
of commissioners at their next session. And such board shall con- 
sider all complaints and recommendations of the grand jury, and obey 
the same, or place on record their reasons for not so doing. R. S. 
1894, § 8337. 

1445, Yisitation,— 9. The members of the board of commissioners, 
and any judge, magistrate or justice of the peace of such county, or 
mayor of any town or city having the right to commit prisoners to 
the work-house, may visit the same at any time, or the prisoners 
whenever they may be at work, for the purpose of determining 
whether the rules and regulations made for the management of said 
work-house and prisoners are duly enforced. R. S. 1894, § 8338. 

1446, Duties of county physician and superintendent. — 10. The 
county physician shall visit the work-house when required by the 
superintendent. The superintendent shall give bond, with securit}'', 
for the faithful performance of his duties, to be approved by the 
board of count}^ commissioners. He, and his subordinates having 
charge of the prisoners, shall have the right to enforce discipline and 
obedience of all orders, rules and regulations made for their govern- 
ment, and arrest any escaped prisoner, wherever found within the 
state, and conduct him to the work-house. R. S. 1894, § 8339. 

1447, Use of city or town work-house. — 11. In case there is a 



§ 1448 MISCELLANEOUS STATUTES AND PROVISIONS. 886 

work-house in auj county owned and maintained by any town or city 
within such county, it shall be lawful for the board of commissioners 
of such county to provide, by written contract with such town or city, 
for the custody and maintenance of any or all able-bodied persons 
sentenced to confinement within the county jail, and to provide for 
their removal to and confinement in such work-house. And the 
sheriff, jailer or other person having the custody of the jail, shall 
obey, carry out, and perform all orders, rules and regulations of the 
board made in pursuance of such agreement. For any neglect or re- 
fusal, he shall be subject to the like penalties provided in section 4 of 
this act. R. S. 1894, § 8340. 

1448. Pimishment of prisoners. — 12. Any person sentenced to or 
held in the \vork-house, who, being physically able to work, refuses 
to work, may be subjected to physical punishment, under such rules 
as the board having control of the w^ork-house may adopt; and may 
be confined in solitary confinement, or fed on bread and water only, 
until he consent to work. R. S. 1894, § 8341. 

1449. Credit for work, — 13. Any person held in or committed to 
the work-house for a failure to pay any fine or costs shall be required 
to work as provided for by the provisions of this act, and credited on 
such fine and costs at the rate of one dollar per day for each day's 
work. But if such person refuse to work, then, for each day he shall 
so refuse, he shall not be entitled to receive any credit, and he may 
also be punished as provided for in this act. R. S. 1894, § 8342. 

[Acts 1867, p. 28. In force March 11, 1867.] 

1450. When females may be sentenced, — 1. When any city, or pri- 
vate corporators, or other persons, shall have established in this state a 
home for friendless women upon principles of protection and reforma- 
tion of abandoned or erring v/omen, which, in the opinion of the 
board of county commissioners of the county in which such home is 
situated, duly recorded, after examination, is in a condition to provide 
for and restrain of liberty any one committed to their charge, on con- 
viction of any woman, or girl, of any crime or misdemeanor or viola- 
tion of any city ordinance, in any of the superior or inferior courts of 
the state or of any city therein, the punishment whereof shall be im- 
prisonment at hard labor or otherwise, the court may, in its discre- 
tion, and with the consent of the trustees or acting authorities of 
such home for friendless women, and with a view to reformation as 
well as punishment, order the imprisonment to be made and done in 
such home for friendless women; and such imprisonment shall be 
held as legal and rightful, or as if made in any state prison or in any 
county or city jail in the state. The mayor or city judge of any in- 
corporated city may sentence and commit such persons, on conviction, 
to such home, for the same period of time that a circuit court could do 
for a like offense. R. S. 1894; § 8343. 

1451. Trustees to enforce judgment. — 2. The trustees, managers 
or other authorities of such home for friendless women, shall, in all 



887 PRISONS POLICE MATRON STOLEN PROPERTY. § 1452 

things, be governed by the laws of the state in making such imprison- 
ment at liard labor, solitary confinement or otherwise, as shall be ad- 
judged bv the court on any such conviction or convictions. R. S. 
1894, § 8344. 

1452. Inspection. — 3. Any such home for friendless women 
shall, at all reasonable hours, be open for the inspection of any such 
court or any grand jury, the governor, any state officer, any commit- 
tee of the general assembly of the state, the council of any city, or the 
board of commissioners of the county in which it is situate. R. S. 
1894, § 8345. 

[Acts 1873, p. 141. In force February 26, 1873.] 

1453, Fines for lewdness. — 1. In all incorporated cities of this 
state where there is now or shall hereafter be established an incorpo- 
rated home for friendless women, incorporated under the laws of this 
state, all fi'nes and penalties, assessed and collected by the mayor or 
other judicial officer of such city, for the breach of any ordinance of 
such city in relation to houses of prostitution, or in relation to the 
keepers, frequenters or inmates thereof; or for the breach of any ordi- 
nance of such city for the suppression of vice or immorality, or for 
the suppression of houses of ill fame, or for the punishment of the 
keepers, frequenters or inmates thereof, when so collected, shall be 
paid over to the board of trustees of such home for friendless women 
in such city, to be applied to defraying the current expenses of such 
home. R. S. 1894, § 8346. 

Constitutional. — This act is constitutional. The IndianapoHs Home for Friendless 
Women is so far a public corporation, or institution, that an appropriation by the legis- 
lature of certain fines, etc., collected for the violation of certain city ordinances, to its 
support, is not the appropriation of money to a private purpose. City of Indianapolis 
V. Indianapolis Home, etc., 50 Ind. 215; Heagy v. State, 85 Ind. 263. See Mount v. 
State, 90 Ind. 32. 

1454, Fines for gambling, — 2. In all incorporated cities of this 
state where there is or shall be established a home for friendless 
women, as described in the preceding section, all fines and penalties 
imposed or assessed and collected by the mayor or other judicial officer 
of such city for the breach of any ordinance against professional 
gambling, or against gaming or gambling of any kind; or against the 
keepers of gambling houses, or the frequenters or inmates thereof, 
when so collected, shall be paid over by the city authorities to the 
board of trustees of such home for friendless women in such city, for 
the purposes specified in the last section. R. S. 1894, § 8347. 

1455. Proceeds of forfeited recognizances. — 3. Whenever any 
person shall be arrested for the breach of any of the ordinances men- 
tioned in either of the two foregoing sections, and shall give a bond 
or recognizance, with or without securit}^ conditioned for his appear- 
ance before the mayor or any other judicial officer having jurisdiction 
to try the case, to answer the charge, and such bond or 



§ 1456 MISCELLANEOUS STATUTES AND PROVISIONS. 888 

shall be forfeited, such forfeiture, when collected, shall be paid to the 
trustees of the home for friendless women which may then exist in 
such city as aforesaid. R. S. 1894, § 8348. 

14:56. Mayor's accounts — Statements. — 4. The mayor, or other 
officer collecting any fines contemplated by this act, shall keep a sep- 
arate account thereof ; and, at the end of each period of three months 
from and after the taking effect of this act, such mayor or other offi- 
cer shall pay the amount, so collected during the preceding three 
months, into the city treasury, for the use of the trustees of such 
home for friendless women ; and said mayor shall, at the same time, 
make a detailed statement to the city council, showing the amount 
that has been so paid into the city treasury, on what account col- 
lected, and that it belongs to the said trustees under the provisions of 
this act ; and, thereupon, the common council of such city shall make 
an order for the payment of the same to said trustees, for the purpose 
aforesaid, and the same shall be paid accordingly. R. S. 1894, § 8349. 

1457, Reports. — 5. It shall be the duty of the trustees of such 
home for friendless women, on or before the 10th day of January of 
each year, to make a detailed report to the common council of such 
city of the operations and business affairs of such home, with a state- 
ment of the receipts and expenditures thereof, and such other matters 
as are usually embraced in reports of kindred institutions, for the 
year ending on the thirty-first day of the preceding December. R. S. 
1894, § 8350. 

[Acts 1895, p. 158. In force March 7, 1895.] 

14:58, Police matron in certain cities. — 1. That in cities contain- 
ing a population of ten thousand or more, the board of police commis- 
sioners, or if there be no police commissioners, then the mayor or 
such other authority as may have the appointment of police officers, 
may appoint a police matron, with such assistants as may be neces- 
sary, whose duty it shall be to receive, take charge of, search and 
properly care for, at the jail or station house, all female prisoners and 
all children under the age of fourteen years who shall be arrested and 
detained in custody in such city. Burns' Supp. 1897, § 3730p. 

14:59. Authority of matron — Kemoyal. — 2. Such police matron, 
when appointed, shall be a member of the police force of such city, 
and shall have all the authority now delegated to a police officer, and 
shall be subject to such rules and regulations as shall be prescribed 
for the government of the police force of such city, and may be re- 
moved by the appointing power for good cause shown. Burns' Supp. 
1897, § 3730g. 

1460. Accommodations — Acts as jailer — Salary, — 3. Such police 
matron shall have proper accommodations for herself; and for all 
prisoners under her control. She shall be jailer in charge of the 
female department of the station house or jail, when such prisoners 
are confined in a jail, with all the powers and duties of a member of 
the police force, and shall have authority to summon any policeman 



SS9 PRISONS POLICE MATRON STOLEN PROPERTY. § 1461 

or other person to her aid, when aid is required. Such police matron 
and her assistant or assistants shall be paid such compensation or 
salaries as may be determined by the board of police commissioners or 
the common council of such city. Burns' Supp. 1897, § 3730r. 

14:61. Attendance in courts. — 4. The police matron, or her assist- 
ant, shall be in attendance in all courts when women are to be tried 
and shall have charge of all such women whether criminals or insane, 
and of all girls while such persons are awaiting trial or transfer to or 
from any place of detention. Burns' Supp. 1897, § 3730s. 

1462. Qualifications — Eecommendations, — 5. Such police matron 
shall not be under thirty-five years of age, fully qualified, of good 
moral character, and shall have no other employment; and, before ap- 
pointment, must be recommended in writing by not less than twenty 
women and five men, all of whom shall have been residents of such 
city for at least five years next previous to such appointment. Burns' 
Supp. 1897, § 3730^. 

[Acts 1895, p. 293. In force March 11, 1895.] 

1463. Stolen property received by police officer — Disposition. — 1. 

That if any money, goods or other property, which has been stolen, 
lost, abandoned, or taken, or received from a person under arrest, 
comes into possession of a member of the police force of a city by vir- 
tue of his office, he shall deliver the same to such officer or member 
of the police department as may be designated by the order or rules of 
such department or commissioners of public safety, and shall there- 
upon be relieved from further responsibilitv therefor. Burns' Supp. 
1897, § 3541d. 

1464. Sale of unclaimed property.— 2. If any such money, goods or 
other property remains unclaimed in the possession or control of any 
such department or commissioners of public safety, or any member 
thereof,' for six months, and the owner and his place of business are 
unknown, such department or commissioners shall cause such money 
to be paid into the city treasury, and such goods or other property to 
be sold at public auction, notice of the time and place of such sale, 
with a description of the property to be sold, being first given by 
publishing the same once a week for three weeks consecutively in 
some newspaper of general circulation printed in such cit}^ Burns' 
Supp. 1897, § 3541e. 

1465. Perishable property— Sale of. — 3. Any such property which 
is of a perishable nature, or which will deteriorate greatly in value by 
keeping, or the expense of keeping which will be likel}^ to exceed the 
value thereof, may be sold at public auction in accordance with the 
rules or orders of such department, or commissioners, reasonable 
notice of the time and place of sale being first given by publishing in 
some newspaper of general circulation printed in such citv. Burns' 
Supp. 1897, § 3541/. 

1466. Proceeds of sale — Disposition of. — 4. The proceeds of every 
such sale, after deducting all reasonable charges and expenses in- 



§ 1467 MISCELLANEOUS STATUTES AND PROVISIONS. 890 

curred on such property, shall be paid into the treasury of the city. 
In cities having a department of finance, the commissioners, upon 
payment of said money into the city treasury, shall certify to the 
comptroller, the date and amount of money so paid in, and the comp- 
troller shall keep an account of all money so paid in, and of all sums 
thereafter drawn from the treasury under the provisions of the follow- 
ing section. Burns' Supp. 1897, § S5Alg. 

1467, Payment to owner of property, — 5. If within one year after 
such sale the owner of any such money, goods or other property makes 
claim to and proves his ownership thereof, the said money or pro- 
ceeds, after deducting all reasonable charges and expenses, shall be 
paid over to him upon the order of the head of such department. 
After one year said money or proceeds shall be deemed a part of the 
general fund of such- city. Burns' Supp. 1897, § 3541/i. 

1468, Wiien act not applicable. — 6. The provisions of this act shall 
not apply to property seized upon a search warrant, the custody and 
disposition of which is otherwise provided for by existing laws. 
Burns' Supp. 1897, § 3541^. 

ARTICLE 8.— PROTECTION FROM FIRE. 

SEC. SEC. 

1469. Protection from fire — Egress from 1472. Watchmen — Lights — Electric bells, 

buildings. etc. 

1470. Fire escapes. 1473. Chain and knotted rope. 

1471. Fire escape — Approval by inspec- 1474. Penalty. 

tor. 1475. Chief inspector — Duties. 

[Acts 1899, p. 473. In force April 27, 1899.] 

1469, Protection from lire — Egress from buildings. — 1. That every 

building now or hereafter used, in whole or in part, as a public build- 
ing, public or private institution, sanitarium, surgical institute, 
as3^1um, school-house, dormitory, church, theater, public hall, place 
of assemblage or place of public resort; and every building in which 
persons are employed above the second story in a factory, workshop 
or mercantile or other establishment; and every hotel, family hotel, 
apartment-house, boarding-house, lodging-house, club-house or tene- 
ment-house in which persons reside or lodge above the third story; 
and ever}^ factory, workshop, mercantile or other establishment of 
more than two stories in height, shall be provided with proper ways 
of egress or means of escape from fire, sufficient for the use of all per- 
sons accommodated, assembled, employed, lodged or residing in such 
building, and such ways of egress and means of escape shall be kept 
free from obstruction, in good repair and ready for use at all times, 
and all rooms above the second story in any such building shall 
be provided with more than one way of egress or escape from fire, 
placed as near as practicable at opposite ends of the room, and lead- 
ing to fire escapes on the outside of such buildings or to stairways 
on the inside provided with proper railings. All external doors 
subject to the provisions of this section shall open outward, and 



891 PROTECTION FROM FIRE. § 1470 

all windows open outward or upward. No portable seats shall 
be allowed in the aisles or passageways of such buildings during 
any entertainment or service held therein. The proscenium or 
curtain-opening of all theaters shall have a fire-resisting curtain of 
some incombustible material, and such curtain shall be properly con- 
structed and shall be operated b}' proper mechanism; the certificate of 
the chief inspector of the department of inspection of the state shall 
be conclusive evidence of a compliance with such requirements. 

1470, Fire escapes. — 2. In addition to the foregoing means of es- 
cape from fire, all such buildings as are enumerated in section 1 of 
this act, as are more than three stories in height, shall have one or 
more fire-escapes on the outside of said building, as may be directed 
by the chief inspector aforesaid, except in such cases as the said chief 
inspector may deem such fire-escapes to be unnecessar}^ in conse- 
quence of adequate provision having been already made for safety in 
the event of fire, and in such cases of exemption, the said chief in- 
spector shall give the owner, lessee or occupant of said building a 
w^ritten certificate to that effect and his reasons therefor; and such fire- 
escapes as are provided for in this section shall be connected with each 
floor above the first, well fastened and secured, and of sufficient 
strength, each of which fire-escapes shall have landings or balconies 
not less than nine feet in length and three feet in width, guarded by 
iron railings not less than three feet in height, and embracing at 
least two windows at each story and connecting with the interior by 
easily accessible and unobstructed openings, and the balconies or 
landings shall be connected by iron stairs, not less than eighteen 
inches wide, the steps not to be less than six inches tread nor more 
than nine inches rise, placed at a slant of not more than forty-five de- 
grees, and protected by a v/ell-secured hand-rail on both sides, with a 
twelve-inch wide drop-ladder from the lower platform, reaching to the 
ground; except in cases of school buildings, instead of drop-ladder, 
the ladders reaching from balconies to the ground shall be permanent, 
and so placed as to stand at an angle of forty-five degrees or less. 

1471. Fire escape—Approval hj inspector. — 3. Any other plan or 
style of fire-escape shall be sufficient, if approved by the chief in- 
spector, but if not so approved, the chief inspector may notify the 
owner, proprietor or lessee of such establishment, or if the building 
in which such establishment is conducted, or the agent or superin- 
tendent, or school officer, or either of them, in writing, that any such 
plan or style of fire-escape is not sufficient, and may, by an order in 
writing, served in like manner, require one or more fire-escapes, as 
he shall deem necessary and sufficient, to be provided for such estab- 
lishment at such location and such plan and style as shall be specified 
in such written order. Within twenty days after the service of such 
order the number of fire-escapes required in such order for such es- 
tablishment shall be provided therefor, each of which shall be of the 
plan and style and in accordance with the specifications in said order 
required. The windows or doors to each fire-escape shall be of suffi- 



§ 1472 MISCELLANEOUS STATUTES AND PROVISIONS. 892 

cient size and be located as far as possible consistent with accessibility 
from the stairways and elevator hatchways or openings, and the lad- 
der thereof shall extend to the roof. Stationary stairs or ladders shall 
be provided on the inside of such establishment from the upper story 
to the roof, as a means of escape in case of fire. 

1472. Watchmen — Lights — Electric bells, etc. — 4. Every keeper 
of a hotel, boarding or lodging house or apartment house containing 
fifty and less than one hundred rooms, and being more than three 
stories high, shall have therein at least one competent watchman on 
duty between the hours of nine o'clock in the afternoon and six o'clock 
in the forenoon; and in all hotels, boarding houses, lodging houses or 
apartment houses containing one hundred or more rooms and being- 
four or more stories in height, not less than two such watchmen shall 
be provided and kept on duty as aforesaid, each properly assigned. 
And in all hotels or lodging or other houses as are mentioned in this 
section, the halls and stairways shall be properly lighted at night, 
and at the head and foot of each flight of stairs, and at the intersec- 
tion of all hallw^ays with the main corridors, shall be kept during the 
night a red light and one or more proper alarms or gongs, capable of 
being heard throughout the house, shall always remain easy of access 
and ready for use in each of said buildings, or an electric alarm bell 
in each sleeping-room, approved by the chief inspector, to give notice 
to the inmates in case of fire. And ever}^ keeper of such hotel, board- 
ing or lodging house or other house, shall keep posted in a conspicu- 
ous place in every sleeping-room a notice descriptive of all means of 
escape. 

1478. Chain and knotted rope. — 5. Every owmer, lessee, pro- 
prietor or manager of a hotel or lodging-house of more than three 
stories high, situated in this state, which is not otherwise suitabl}^ 
provided with fire escapes for the protection of human life in case of 
fire, shall place or cause to be placed, a chain and a knotted rope, 
or other better appliance, in every room of said hotel or lodging 
house used as a lodging room in rooms above the third floor, said 
chain to be at least ten feet in length and securely fastened at one end 
of it to a bolt extending through the wall of the building over lintel 
of window, the other or low^er end of said chain to be firmly attached 
to the knotted rope, wdiich rope shall be at all times kept coiled in an 
uncovered box, placed near the inside of the v/indow and exposed to 
the plain view of any occupant of said room, in such manner as to 
be easily and quickly uncoiled; such rope shall contain knots not 
more than eighteen inches apart, and a loop on the end at least three 
inches in length, and shall be not less than one-half inch in diameter 
and of sufficient length to reach from such window^ to the ground. 
Such rope, chain, bolt and fastenings shall be of sufficient strength to 
sustain a weight of four hundred pounds, and there shall be plain 
directions how^ to use such rope or other better appliance printed and 
posted within six inches of the casing of the window where such 
appliance or chain rope is fastened. 



893 firemen's pension fund. § 1474 

1474. Penalty. — 6. The owner of any building designated in this 
act^ or the lessee or occupant thereof, or any school officer or other 
officer having charge of public property, who neglects or refuses to 
comply with any of the provisions of this act, shall be fined not ex- 
ceeding two hundred dollars, and be deemed guilty of a misdemeanor 
punishable by imprisonment for not less than one month nor more 
than two months. And in case of fire occurring in said building or 
buildings in the absence of such fire escape or escapes, the said person 
or persons or corporations or public officials shall be liable in an ac- 
tion for damages with a penalty of five thousand dollars for the life of 
each person killed in case of death, or for damages for personal in- 
juries sustained in consequence of such fire breaking out in said build- 
ing, and shall also be deemed guilty of a misdemeanor punishable by 
imprisonment for not less than six months, nor more than twelve 
months in the county jail; and such action for damages maybe main- 
tained by any person now authorized by law to sue as in other cases 
of similar injuries: Provided, That nothing in this act shall interfere 
with fire escapes now in use approved by the chief inspector. 

1475. Chief inspector — Duties. — 7. The chief inspector of the 
department of inspection of the state is hereby charged with the en- 
forcement of this act, and shall see that its provisions are observed 
and enforced, and for this purpose he or his deputies shall have free 
access at all reasonable hours to all buildings embraced herein; and 
the prosecuting attorney in each county of the state shall render all 
necessary legal assistance as may be required by said chief inspector 
in enforcing this act. 

ARTICLE 9.— FIREMEN'S PENSION FUND. 

SEC. SEC. 

1476. Board of trustees — Cities included 1484, Beneficiaries, who are, 

in act. 1485. Deficiency— Pro rata payments. 

1477. Trustees — Composition of board — 1486. Amount paid — Retiring members — 

By-laws — Oaths. Payments to dependents. 

1478. Fire company defined. 1487. Pensioners under former laws. 

1479. Selection of trustees. 1488. Re-examination of retired members. 

1480. Elections — Time — Terms — Mode of 1489. Warrants for money. 

election. 1490. Exemption of funds from seizure. 

1481. Oflicers —Election — Duties — Rules. 1491. Custodian of funds — Liability. 

1482. Pension fund — What constitutes. 1492. Acts repealed — Saving clause. 

1483. Investment of funds — Accounts — 

Bond of president — Reports. 

[Acts 1895, p. 30. In force February 23, 1895.] 

1476. Board of trustees — Cities included in act, — 1. That in every 
city in the state of Indiana, maintaining a regularly organized and 
paid fire department, there is hereby created a ''board of trustees of 
the firemen's pension fund'' to be composed of the persons herein- 
after named and to be selected as hereinafter directed ; and in all such 
cities there is hereby created a firemen's pension fund, to be derived 



§ 1477 MISCELLANEOUS STATUTES AND PKOVISIONS. 894 

and received from the sources and in the manner hereinafter provided. 
The said fund to be managed, used and disbursed according to the 
provisions of this act and in conformit}^ to the by-laws of the board of 
trustees adopted in compliance herewith: Provided, That the provisions 
of this act shall apply to all cities of this state containing a population 
of not less than thirty thousand, according to the United States census 
of 1890, and maintaining a regularly organized and paid fire depart- 
ment, and that in all such cities a board of trustees of the firemen's 
pension fund is hereby established, and that this act shall apply to 
all other cities of this state which maintain a regularly organized and 
paid fire department in case the common council of any such city 
shall elect to establish a board of trustees of the firemen's pension 
fund, and if any such city elects to establish such board, its common 
council shall adopt an ordinance or resolution establishing such board, 
and upon the adoption of such ordinance or resolution this act shall 
apply to and govern such city. Burns' Supp. 1897, § 4190a. 

See ante, §§489, Ol-G, 800, 948. 

Firemen's Pension Fund Act of 1891— Unconstitutional.— The act of March 9, 
1891 (Acts 1891, p. 415), for the creation of a firemen's pension fund, etc., was unconsti- 
tutional as being in conflict with the provision of the constitution as to the title of acts ; 
also as being in violation of tlie provisions of the constitution respecting uniform and 
equal rate of taxation. Henderson, etc., v. The London, etc., Co., 135 Ind. 23. 

1477. Trustees — Composition of board— By-laws — Oaths. — 2. The 

''board of trustees of the firemen's pension fund" shall be composed 
of six members, two of whom shall be the mayor and chief fire engi- 
neer or chief of the fire force, who shall be, by virtue of their respective 
offices, members of such board. Their membership of such board 
shall continue while in ofiice, and if, in case of death, resignation or 
removal or by expiration of their respective official terms as mayor 
and chief fire engineer or chief of the fire force, successors shall be 
elected or appointed, then such successors shall be ex officio members 
of said board. The other members of the said board of trustees shall 
be elected from the members of the fire department for the terms and 
in the manner hereinafter specified and provided. The said board of 
trustees shall have the management and control of the said firemen's 
pension fund and of all matters therewith legitimately connected, and 
shall manage, use and disburse said fund for the purpose hereinafter 
provided. The said board of trustees shall have power to adopt and 
enforce such by-laws as may be necessary to enable the said board to 
effectively and properly carry into execution the purpose for which it 
was organized and to enable it to properly manage and conduct the 
business and affairs entrusted to it, provided that such by-laws shall 
not in anywise contravene the provisions of this act, but shall be in 
conformit}^ thereto. Each of said trustees shall, before entering upon 
the duties of his office, take an oath to faithfull}^ honestly and justly 
perform the duties thereof. The said board of trustees shall be a body 
having a continuous succession, subject only to the right to modify or 
repeal, which is hereby reserved. Burns' Supp. 1897, § 41906. 

1478. Fire company defined. — 3. Each organization or body of 



895 firemen's pension fund. § 1479 

men doing duty as part of the fire department, whether in the tele- 
phone or telegraph service or as watchman for fires in a tower or other 
place, shall he deemed a fire company within the meaning of this act, 
and whenever the term ''fire company '* or the term "fire companies," 
is used herein it shall be construed as meaning and including such 
organizations as those above mentioned, as well as companies having 
charge of engines, hose reels, or other apparatus for extinguishing 
fires. Burns' Supp. 1897, § 4190c. 

1479, Selection of trustees, — 4. The four members of the board 
of trustees of the firemen's pension fund, selected from the members 
of the fire department, shall be chosen as follows: Within ten days 
after this act takes effect the chief fire engineer or chief of the fire 
force shall designate a day for holding the first election under the pro- 
visions of this act, and such officer, within the period aforesaid, shall 
fix a time for holding a convention to nominate trustees for election, 
and the time for holding such convention shall be fixed five days ear- 
lier than the time for holding such first election. Such convention 
shall consist of one delegate from each fire company in said city and a 
delegate to be selected by the chief fire engineer, or chief of the fire 
force, and his assistant, or if there be more than one assistant, then by 
such chief and his assistants, acting jointly. The delegate from each 
fire company shall be elected by ballot by the members of such com- 
pany at the time fixed by such chief fire engineer, or chief of the fire 
force, in the call for such convention. The election of such delegates 
shall be certified by the captain or other officer of such fire com- 
pany, or, if there be no other officer in command of such company, 
then by the oldest member thereof present at such convention. Such 
convention when convened shall nominate six members of the fire 
department to be voted for as such trustees and the names of the per- 
sons so nominated as candidates shall by the delegates to such con- 
vention be reported in writing to their respective companies. The 
said election shall be held at the respective houses or quarters 
of the respective companies on the day named by the chief fire engi- 
neer or chief of the fire force, between the hours of 9 o'clock a. m., 
and 6 o'clock p. m. Every member of such fire company shall 
be entitled to one ballot and no ballot shall contain the names 
of more than four persons, and the persons whose names are placed 
on said ballots shall be chosen from the six persons nominated 
by the convention. The candidate receiving the highest num- 
ber of votes shall hold the office of trustee for four jeRYs, the candi- 
date receiving the next highest number of votes shall hold office for 
three years, the candidate receiving the next highest number of votes 
shall hold office for two years, and the candidate receiving the next 
highest number of votes shall hold office for one year, provided that 
the terms of office of the persons elected at such first election shall 
run from the first Tuesday of January, 1895. The captain or other 
officer in command of said fire companies on the day of, and immedi- 
ately after the casting of such ballots shall canvass and count the 



§ 1480 MISCELLANEOUS STATUTES AND PROVISIONS. 896 

same, and certify in writing the number of ballots cast and the num- 
ber of votes received by each candidate for the office of such trustees. 
After signing such certificate, said officer shall enclose the same, to- 
gether with all the ballots cast by said fire company, in an envelope, 
securely sealed and addressed and deliver the same to the chief fire 
engineer or chief of the fire force of said city, who shall deliver the 
same to the mayor of the city as soon as all such certificates and bal- 
lots have been received by him. The mayor upon the receipt thereof 
shall in the presence of said chief fire engineer or chief of the fire force 
and the city clerk, open said envelopes, examine said certificates, and 
ascertain and determine the total number of the votes so cast at said 
election for each of such candidates for the office of trustee and shall 
issue certificates of their election as such trustee to the four candidates 
having received the highest number of votes. In case any two or 
more candidates shall have received the same number of votes, so that 
there would be no choice under the foregoing provision, then such 
mayor and chief fire engineer or chief of the fire force shall forthwith 
by lot determine from the persons so receiving such equal number of 
votes who shall be trustees. No election shall be set aside for want of 
formality in balloting by such members, or certifying or transmitting 
returns of any such election by the officers in charge. Burns* Supp. 
1897, § 4:ldOd. 

1480. Elections — Time — Terms — Mode of election. — 5. The reg- 
ular elections shall be held on the first Tuesday of January in each 
year, beginning with January, 1896. At each regular election, one 
trustee shall be elected for a term of four years. The provisions of 
the preceding section as to the mode of calling the convention, select- 
ing the delegates, conducting the election, the preparation of ballots 
and all other like matters as well as to the certificates of election, the 
decision in case of a tie and all matters of like nature, shall govern 
the holding and conducting of regular elections: Provided, That only 
one trustee shall be elected at each regular election. Burns' Supp. 
1897, § 4190e. 

1481. Officers— Election— Duties— Kules.— 6. The chief fire en- 
gineer or chief of the fire force, shall be president of the board of 
trustees of the firemen's pension fund. At the first meeting after each 
election such board of trustees shall elect a secretary, who may be 
chosen from one of their own number, provided that if the board deem 
proper a secretary who shall be a member of the fire department may 
be elected by the companies to serve for a term of four years. It shall 
be the duty of the secretary to keep, in a book provided for that pur- 
pose, a full record of all the proceedings of said board of trustees; and 
the board shall make all needful rules and regulations for its govern- 
ment in the discharge of its duty, and shall hear and determine all 
applications for relief or pensions under this act. Burns' Supp. 1897, 
§ 4190/. 

1482. Pension fund — What constitutes. — 7. Such pension fund 
shall consist: 



897 firemen's pension fund. § 1483 

I. Of all such moneys as may be given to said board or fund by 
any person or persons for the uses and purposes for which said fund 
is created. And such board of trustees may take by gift, grant, de- 
vise or bequest any money, personal property, real estate, or any in- 
terest therein, or any right of property; and any such gift, grant, 
devise or bequest, may be absolute or in fee-simple, or upon the con- 
dition that only the rents, income or profit arising therefrom shall be 
applied to the purposes for which such fund is established. 

II. Of all moneys, fees, rewards or emoluments in money of every 
nature and description which may be paid or given to the fire depart- 
ment or any of the companies of such department. 

III. Every member of said fire department shall be assessed a por- 
tion of his salar}^ and such assessment shall not be less than one-half 
of one per centum or more than one per centum of his compensation, 
and all such assessments shall be applied to the pension fund: Pro- 
vided, lioiuever, That in no case shall the assessment of any one person 
exceed fifteen dollars per annum. The board of trustees shall have 
discretionary power to fix the rate of assessments within the limits 
herein described. The secretary of the fire department, or the person 
whose duty it may be to make out pay-rolls, shall place opposite the 
name of every member of the fire department, on the pay-roll, the 
amount of assessment on each individual's salary, and the city treas- 
urer or the county treasurer, acting as city treasurer, shall, monthly, 
deduct from the salary, of every member of said fire department, the 
sum set opposite his name, and shall place the same to the credit of 
the firemen's pension fund. Every person who becomes a member of 
the fire department shall be liable to the aforesaid assessment, and in 
becoming a member thereof he shall be conclusively deemed to under- 
take and agree to pay the same and to have it deducted from his com- 
pensation as herein provided. 

IV. A sum equal to one-tenth of one mill, of each dollar, of the value 
of all the taxable property annually assessed, in any such city, as the same 
appears on the yearly tax duplicate thereof, which sum shall be set apart 
and made part of such firemen's pension fund by the city treasurer 
or county treasurer acting ex officio as city treasurer: Provided, That 
the said sum shall not be used for or devoted to any purpose other 
than that herein specified. Burns' Supp. 1897, § 4190^^. 

1483. Investment of fnnds — Accounts — Bond of president — Re- 
ports. — 8. The board of trustees of the firemen's pension fund, may, 
at any time after considering the probable demands upon said fund 
in the near future, determine what portion of such funds may be 
safely drawn therefrom for investment for revenue purposes; and hav- 
ing determined what portion thereof shall be so withdrawn for that 
purpose, shall enter their proceedings at length upon their record, and 
shall cause a warrant to be drawn for such amount payable to the or 
der of its president, which warrant shall upon its face show that such 
amount is drawn for investment for revenue purposes. And, there- 

ClT. AND To.— 57 



§ 1484 MISCELLANEOUS STATUTES AND PROVISIONS. 898 

upon, such board of trustees shall determine in what manner it shall 
be invested; which may be by the purchase of any of the interest- 
bearing bonds of the United States, or of the state of Indiana, or of 
any bonds lawfully issued by any county, city or township, incorpo- 
rated village or other municipal corporation of this state, or without 
this state, when there is adequate legislative authority for the issuance 
thereof. The president shall thereupon draw said moneys from the 
city tieasurer or the county treasurer, acting as city treasurer, upon 
such warrant and invest the same as directed by said board in the 
name of ''the board of trustees of the firemen's pension fund" of such 
city. The president shall deposit all securities with the city treasurer, 
or county treasurer acting as city treasurer, who shall collect all in- 
terest due thereon and place the same in the said pension fund. The 
treasurer shall keep a separate account of said fund, and therein fully 
and accurately set forth all mone}^ received and paid out by him, and 
he shall make report to the board of trustees of the firemen's pension 
fund of all moneys received and distributed by him on the first Mon- 
day of Januar}^ and June of each year. And the president of said 
board shall execute his bond in such sum as the board may deem ade- 
quate, conditioned that he will faithfully discharge the duties of his 
office, and faithfully account for and pay over to the persons author- 
ized to receive the same, all moneys which may come into his hands 
by virtue of his office, with sureties to the approval of such board of 
trustees of the firemen's pension fund, which bond shall be filed with 
the mayor of said city and be preserved by him. The board of trustees 
of the firemen's pension fund, shall make a full and accurate report 
of the condition of said pension fund to the common council of such 
city on the first day of January in each year. Burns' Supp. 1897, 
§ 4190/1. 

1484. Bene^ claries 9 who are. — 9. If any member of the said fire 
department of such city shall, while in the performance of his duty, 
become, or be found, upon examination by a medical officer ordered 
by the director, person or persons having charge or control of the fire 
department in such city to be physically or mentally permanently dis- 
abled, so as to render necessary his retirement from all service in said 
fire department, such director, person or persons having charge of said 
fi.re service shall retire such permanently disabled person from all 
service in said fire department, and the board of trustees of the fire- 
men's pension fund shall authorize the payment to such permanently 
disabled person monthly, from the pension fund, the sum provided in 
section 11 of this act. When any member of said fire department, or 
retired member on the pension fund thereof, dies, from any cause 
whatever, and leaves a widow or a child or children under sixteen years 
of age, the board of trustees shall authorize the payment to such wid- 
ow, while unmarried, and child or children under sixteen years of 
age, monthly from the pension fund, the sum or sums provided in 
section 11 of this act; or if any deceased member shall have a depend- 
ent mother or father upon satisfactory proof that such mother or 



899 firemen's pension fund. § 1485 

father was dependent upon said deceased member of the fire depart- 
ment, the board of trustees shall authorize the payment to such mother 
or father, monthly, from the pension fund, the sum provided in sec- 
tion 11 of this act: Provided, hoiuever, That no pension shall be paid 
to the mother or father of a deceased member who leaves a dependent 
widow; and if the widow of any deceased member shall remarry, her 
pension shall cease: Provided, further ^ That if there be no widow and 
no child or children, and no father or mother, but dependent brothers 
and sisters, then such pension shall be paid to them. Burns' Supp. 
1897, § 4190?'. 

1485, Deficiency — Pro rata payments, — 10. That if at any time 
there should not be sufficient money or bonds to the credit of the said 
pension fund to pay to each person entitled to the benefit thereof, the 
full amount per month as hereinbefore stated, then and in that event 
an equal percentage of said monthly payments shall be made to each 
beneficiary thereof, until said fund is so replenished as to warrant pay- 
ment in full to each of said beneficiaries. Burns' Supp. 1897, § 4190j. 

1186. Amount paid — Retiring members — -Payments to dependents. 
— 11. The sums to be paid to permanently disabled members and the 
widows and orphans, or dependent mothers or fathers, or brothers or 
sisters of deceased members, shall be as follows: Upon retirement 
with such disability during service he shall receive not less than 
twenty-five dollars nor more than fifty dollars per month, and in 
event of his decease while in such service of the fire department or 
after such retirement, the widow shall receive not less than twenty 
nor more than twentj^-five dollars per month, and their children un- 
der sixteen years of age not more than eight nor less than six dollars 
per month, which sum so paid for the benefit of said children shall 
be paid to the mother if alive, so long as such children shall reside 
with and be supported by her. Any member of such paid fire depart- 
ment who has been in the service of said paid fire department, twenty- 
five years, upon making written application to the director or person or 
persons having charge of the fire service, at his own option, may with- 
out medical examination or disablility, be retired from all services in 
said fire department; and upon such retirement, the board of trustees 
of the firemen's pension fund shall authorize the payment to such 
retired member, monthl}^, from the pension fund, the sum of not less 
than twenty dollars per month, nor more than forty dollars per 
month. The pension of the dependents of such retired members shall 
be the same in case of death after retirement as provided for depend- 
ents of those who die in the service, or after retirement with disability, 
but the member so retired without special disabilit}^ shall always re- 
ceive the same amount of pension as when he retired. The pension 
of the dependent mother or father or brother or sister of a deceased 
member who dies in the service of the fire department, or after retire- 
ment, whether voluntary or with disability, shall be the same as that 
provided for the widows of such members. Any member who may 
be discharged from the fire department after having served not less 



§ 1487 MISCELLANEOUS STATUTES AXD PROVISIONS. 900 

than twenty years, he shall receive not less than fifteen dollars nor more 
than thirty dollars per month: Provided, Such discharge is for any other 
offense than a criminal act; and in the event of death of such member 
after retirement, if he leaves a widow or dependents, they shall receive 
the amount provided for the dependents of those who have died in the 
service of the fire department. In no case shall the board of trustees 
depart from the provisions of this section in authorizing the pay- 
ment of such pensions. Burns' Supp. 1897, § AldOk. 

1487. Peiisioners under former laws. — 12. This act shall apply to 
all persons receiving pensions from the firemen's pension fund of such 
cities who have been placed on such pension roll under any former 
law or laws, except widows or children of deceased members of such 
fire departments, who shall receive the same as they were receiving at 
the time of the passage of this act; and in any application for pension 
now pending before the board of trustees, the board herein created, 
may, in its discretion, place such dependents in the class of pensioners 
as provided in sections 9 and 11 of this act. Burns' Supp. 1897, 
§ 4190L 

1488. Re -examination of retired members.— 13. After any mem- 
ber of such fire department shall have been retired upon pension by 
reason of disability, the board of trustees shall have the right, at any 
time, to cause such retired member again to be brought before it and 
again examined by competent physicians and surgeons, and also to 
examine other witnesses for the purpose of discovering whether such 
disability yet continues, and whether such retired member should be 
continued on the pension roll; but he shall remain upon the pension 
roll until reinstated in the service of the fire department. Such re- 
tired member shall be entitled to notice and to be present at the hear- 
ing of any such evidence, shall be permitted to propound any ques- 
tions pertinent or relevant to such matter, and shall also have the right 
to introduce evidence upon his own behalf. All witnesses so produced 
shall be examined under oath, and any member of such board of trust- 
ees is hereby authorized and empowered to administer such oath to 
such witnesses. The decision of such board shall be final and con- 
clusive, and no appeal shall be allowed therefrom, nor shall the same 
be received by any court or other authority. Burns' Supp. 1897, 
§ 4190m. 

1489. Warrants for money.— 14. The payment of all pensions 
shall be made by warrants drawn by the order of said board of trus- 
tees, signed by the president and countersigned by the secretarv. 
Burns' Supp. 1897, § 4190?i. 

1490. Exemption of funds from seizui'e. — -15. No portion of said 
pension fund shall, either before or after any order for the distribu- 
tion thereof to members of said fire department, or to the widows or 
guardians of any such child or children, or to the dependent father or 
mother or brother or sister of any such deceased, disabled or retired 
member of such department, be held, seized, taken, subjected to, de- 
tained, levied on by virtue of any attachment, execution, judgment, 



901 policemen's pension fund. § 1491 

writ, interlocutory or other order, decree or process, or proceedings of 
any nature whatever issued out of or by any court in this or any 
other state for the payment or satisfaction, in whole or in part, of any 
debt, damages, claim, demand, judgment, fine, amercement of such 
member or his widow or children, or of the dependent mother or 
father of any deceased member; but the said fund shall be sacredly 
kept, secured, promoted and distributed for the purpose of pensioning 
the persons named in this act, and for no other purpose whatever: 
Provided, The said board may annually expend such sum as they may 
deem proper from' such fund for the necessary expenses connected 
therewith. Burns' Supp. 1897, § 4190o. 

M91. Custodian of funds — Liability.— 16. The city treasurer, and 
in those counties where the county treasurer is ex oificio city treasurer, 
such county treasurer, is hereby made the custodian of all the moneys 
belonging to such firemen's pension fund, and all moneys belonging 
thereto shall be promptly paid to him. He shall be liable on his bond 
as such for the faithful performance of all the duties imposed upon 
him by this act, and for the faithful accounting for all moneys and 
securities which may come into his hands belonging thereto, and he 
shall keep a separate account thereof which shall at all times show the 
true condition of such fund. Burns' Supp. 1897, § 4190p. 

1492. Acts repealed — Saving clause.— 17. All acts and parts of 
acts in conflict herewith are hereby repealed, provided that organiza- 
tions formed under the act of March 9, 1891, entitled *'An act to cre- 
ate a firemen's pension fund for the pensioning of disabled firemen, 
and the widows and the dependent children, mothers and fathers of 
deceased firemen, to create a board of trustees of such fund, to author- 
ize the retirement from service of disabled members, and of all mem- 
bers after a service of twenty-five years and pensioning of such mem- 
bers, and for other purposes in connection herewith in cities in this 
state having paid fire departments, and declaring an emergency," 
shall come under and be reorganized under the provision of this act, 
and funds raised under such act and in the hands of trustees chosen 
thereunder shall upon the selection of trustees under this act, be trans- 
ferred to the control and management of such trustee. Burns' Supp. 
1897, § 4190g. 

ARTICLE 10.— POLICEMEN'S PENSION FUND. 

Retired members subject to orders 
of superintendent. 

Duties of police surgeon — Examina- 
tions. 

Payment of claims. 

Time and place of payment. 

Pensions exempt. 

Penalty for failure to account for 
funds. 

Pensions discontinued for offenses 
and misconduct. 



SEC. 




SEC. 


1493. 


Police pension fund — Trustees — 
Terms of office. 


1500. 


1494. 


Powers of board of trustees. 


1501. 


1495. 


Mayor — President. 




1496. 


Duties of officers— President- 


1502. 




Treasurer — Secretary . 


1503. 


1497. 


Sources from which fund is derived. 


1504. 


1498. 


Investment of funds. 


1505. 


1499. 


Purposes for which fund shall be 






used— Pensions. 


1506. 



§ 1493 MISCELLANEOUS STATUTES AND PROVISIONS. 902 

[Acts 1899, p. 94, In force February 24, 1899.] 

1493. Police pension fund— Trnstees— Terms of office. — 1. That 
in every city in tiie state of Indiana, having a population of 100,000 
or more according to the last preceding United States census, there 
shall be, and is hereby, created a police pension fund, which shall be 
governed and managed by a board of trustees, to be composed of nine 
members, as follows: The mayor, the city treasurer, the superintend- 
ent of police of such city, who shall be ex-offlcio members of said board, 
and six members of the police force of such city, to be selected at a 
meeting of the police force of such city on the second Monday of 
March, 1899, at the central station of such city — ^two of such six trus- 
tees so chosen shall hold their offices for one year, two shall hold 
their offices for two years, and two shall hold their offices for three 
years, to be determined by lot among them, and thereafter there shall be 
selected on the second Monday of March of each year thereafter two 
trustees to succeed those whose terms of office shall expire on said 
date. And such trustees shall hold their said offices until their suc- 
cessors shall be elected and qualified. In the event of the vacancy of 
any of the six trustees, selected by said police force, as aforesaid, by 
death, resignation or otherwise, then said police force shall, within a 
reasonable time, upon the call of the mayor of such city, hold a 
special meeting and elect a successor or successors. A majority of all 
said trustees shall constitute a quorum for the transaction of business 
pertaining to said pension fund. Said trustees shall receive no pay 
for their services as such and shall be paid only their necessary ex- 
penses, except the secretary, who shall be paid such sum for his serv- 
ices as may be fixed by the board of trustees. 

See ante, §§ 489, 464, 800, 948. ' 

1494:. Powers of board of trustees, — -2. Said board of trustees shall 
have power and authority to make all necessary by-laws providing for 
the manner of the election of said trustees, to be elected as aforesaid, 
the counting and canvassing of the votes for the same, their meetings, 
for the collection of all moneys and other property coming or belong- 
ing to said fund, and all other matters connected with the care, pres- 
ervation and disbursement of the same, and for all other matters con- 
nected with the proper execution of the purposes and provisions of 
this act. 

1495. Mayor— -President.— 3. The mayor of such city shall be presi- 
dent of such board of directors, and such city treasurer shall be the 
treasurer of said board, and said board shall select one of their mem- 
bers to act as secretary of the same. 

1496. Duties of officers — President— Treasurer— Secretary. — 4. 
It shall be the duty of the president of said board to preside over the 
meetings of the same, to call all special meetings of the police force 
of such city, and preside over the annual called meetings of the same 
held with relation to said fund. It shall be the duty of the city treas- 
urer of such city, who shall be ex-officio the treasurer of said board of 
trustees, to collect and hold all moneys belonging to such policemen's 
pension fund ; to have the custody of all notes, bonds and other se- 



903 policemen's pension fund. § 1497 

ciirities belonging to said fund, and to collect the principal and inter- 
est of the same, and he shall be liable on his bond, as such city treas- 
urer, for the performance of all the duties imposed upon him by this 
act, and for the faithful accounting of all moneys and securities which 
may come into his hands belonging to the same. And he shall keep 
a separate account which shall show, at all times, the true condition of 
such fund. Said treasurer shall, upon the expiration of his term of 
office, account to said board for all moneys, notes, bonds and other 
securities coming into his hands, and the proceedings of the same, 
and to turn over to his successor all moneys, notes, bonds and other 
securities belonging to said fund remaining in his hands. It shall be 
the duty of the secretary to keep a true and accurate account of the 
proceedings of such board of trustees and of such police force of such 
city, when acting upon matters with relation to said fund ; to keep a 
true and correct statement of tlie account of each member with said 
pension fund, and to collect and turn over to the treasurer of said 
board all fees, rewards, fines and other moneys belonging to said 
fund; said secretary shall render a monthly account of his doings, as 
such secretary, to said board of trustees, and shall turn over to his 
successor all books and papers pertaining to such office. Said secre- 
tary shall execute a bond to such board of trustees in such amount as 
may be fixed by them, with surety or sureties to be approved by them, 
conditioned upon the faithful discharge of his duties as such secre- 
tary. Said secretary and treasurer shall make a full, true and accu- 
rate report of their said trusts at each annual meeting of such police 
force in March of each year. Their books shall, at all times, be open 
to examination by any member of said board of trustees. 

1497. Sources from which fund is derived, — 5. Such board of 
trustees shall have full charge and control of the police pension fund 
of such city, which shall be derived from the following sources: 

First. Of all moneys that may be given to said board of trustees 
or fund or to the board of safety of such city, for the use of said board 
of trustees or police pension fund, by any person or persons. Such 
board of trustees may take by gift, grant, devise or bequest, any 
money, choses in action, personal property, real estate or any interest 
therein, and any such gift, grant, devise or bequest ma}^ be ab- 
solute, or upon the condition that only the rents, profits and in- 
come arising from the same shall be applied to the uses and purposes 
of said fund. Such board of trustees shall be authorized to take such 
gift, grant, devise or bequest under and by the style of the board of 

trustees of the police pension fund, of , and to hold the same, 

or assign, transfer or sell the same, whenever proper and necessary, 
under and by such name. 

Second. All moneys, fees and rewards of every nature and descrip- 
tion, which may be paid or given to the police force of such city, or 
any member of the same, by reason of or because of any service or 
duty connected with or performed by such police force or members 
thereof. Also all fines imposed by the board of safety of such city 



§ 1498 MISCELLANEOUS STATUTES AND PROVISIONS. 904 

against any member of such police force for any breach of discipline 
or duty. 

Third. Every member of said police force shall be assessed a por- 
tion of his salary, to be fixed and provided for in the by-laws of said 
police pension fund, and such assessment shall not be more than two 
per centum of his salary: Provided, however, That in no case shall the 
assessment of any one person exceed fifteen ($15) dollars per annum. 
The secretary of such board of trustees shall prepare a roll of each of 
said assessments and place opposite the name of every member of such 
police force the amount of the assessment against the same, and the 
treasurer of said board shall deduct and retain out of the salary going 
to such officer the amount of said assessment and give him credit for 
the same, and place the same to the credit of said police pension fund. 
Every person becoming a member of the police force of such city shall 
be liable to the payment of such assessment, and in becoming a mem- 
ber of such police force he shall be conclusively deemed to undertake 
and agree to pay the same, and to have such assessment deducted from 
his salary as before provided. 

Fourth. A sum equal to one-tenth of one mill shall be annually 
assessed and levied by such city upon each dollar of all the taxable 
property in such city, as the same appears on the tax duplicate thereof, 
Avhich sum shall be collected by the treasurer of such city, and b}^ 
him credited to the said police pension fund, and shall not be used or 
devoted to any other than the purpose of said fund. 

Fifth. All moneys derived from the sale of all unclaimed, lost or 
stolen property taken up by the members of said police force. 

Sixth. Such fees paid for the granting of privileges and licenses 
as may be provided for by the common council of such city. 

1^98. Investment of funds. — 6. The board of trustees of such 
police pension fund shall determine how much of said fund may be 
safely invested, and how much shall be retained for the needs, de- 
mands and exigencies of said fund. Such investment shall be made 
in interest-bearing bonds of the United States, or of the state of In- 
diana, or of an}^ bonds lawfully issued by any county, state or town- 
ship or incorporated or other municipal corporation of this state, or 
without this state, and such bonds shall be deposited wuth and remain 
in the custody of the treasurer of said board, who shall collect all in- 
terest due thereon, as the same becomes due and payable. 

1499. Purposes for wMch fund shall be used — Pensions. — 7. Said 
fund shall be used and devoted to the following purposes: 

1st. Any member of the police force of such city, who shall, upon 
examination by the police surgeon of said city, be found to be per- 
manently disabled, physically or mentally, because of an injury re- 
ceived or disease contracted while in the performance of his duty so 
as to render necessary his retirement from service on the police force 
of such city, then said board of trustees shall authorize the payment 
to such person, from the said pension fund a sum equal to one-half 
of the salary of the grade held by such officer for one year next pre- 



905 policemen's pension fund. § 1499 

ceding the time of his said retirement. After any member of such 
police force shall have been retired upon pension by reason of dis- 
ability, the board of trustees shall have the right at any time to cause 
such retired member again to be brought before it and examined by 
the police surgeon of said city and also to examine other witnesses for 
the purpose of discovering whether such disability yet continues and 
whether such retired member should be continued on the pension roll, 
but he shall remain upon the pension roll until reinstated in the 
service of the police force. Such retired member shall be entitled to 
notice and to be present at the hearing of any such evidence, shall be 
permitted to propound any question pertinent or relevant to such 
matter and shall also have the right to introduce evidence upon his 
own behalf. All witnesses so produced shall be examined under oath 
and any member of such board of trustees is hereby authorized and 
empowered to administer such oath to such witnesses. The decision 
of such board shall be final and conclusive and no appeal shall be 
allowed therefrom nor- shall the same be reviewable by any court or 
other authority. 

2d. Whenever any member of such police force shall have been in 
the service of such city fifteen years or more and shall have reached 
the age of fifty years and be found, after examination by the police 
surgeon of such city, to be physically or mentally unfit for police duty, 
such member shall be retired from such police force and shall receive 
from such fund a sum equal to one-half of the salary of the grade 
which he held for one year next preceding the time of his retirement: 
Provided, however, That said members, when so retired, shall report 
to the superintendent of police of such city from time to time, as may 
be provided for in the by-laws of said board of trustees, for duty, and 
such superintendent may assign such retired officer to any service or 
duty within his power to perform, in the opinion of the police surgeon 
of such city, and shall receive full pay while in the performance of 
such duty. Should such retired member recover from his disability 
and be, in the opinion of the police surgeon, again fit for active duty, 
then such member may again be put on active dut}^ on full pay. To 
entitle any one to be retired because of age, the time served by sucli 
person upon the regularly constituted police force of the city on which 
he shall then be serving shall only be computed and shall include all 
time served by such person before, as well as after the taking effect of 
this act. No time served by any person, as a special police officer or 
as a police officer upon the request of any private person, firm, cor- 
poration, or as a merchant policeman shall be considered in the length 
of service of such person upon such police force. 

3rd. Upon the death of any member of such police force, active or 
retired, while in tlfe line of duty or from natural causes, there shall be 
paid for funeral expenses of such deceased member a sum not to 
exceed $150 and should such deceased member leave a widow, child 
or children under the age of sixteen years, or both, then there shall 
be paid to such widow out of said fund $20 per month, and such 



§ 1500 MISCELLANEOUS STATUTES AND PROVISIONS. 906 

children shall each receive $6 per month, until they arrive at the age 
of sixteen years, respectively, to be paid to the mother of such chil- 
dren, if living, for their benefit, so long as such children shall reside 
with, or be supported by her, not, however, after said age of sixteen 
years, and if such children shall reside with, or be supported by some 
one other than their mother, then such sum shall be paid to the per- 
son with whom they shall reside or be supported. 

4th. If any member of such police force, active or ret'ired, shall 
die, leaving a father or mother dependent upon him, such father or 
mother (but not both) shall, upon satisfactory proof of such depend- 
ence being made to said board of trustees receive from such fund not 
more than $12 per month. The said board of trustees shall determine 
whether or not such parents be dependent and when they may cease 
to be dependent, and how much of the amount herein provided for 
shall be paid to them respectively. 

5th. Upon remarriage of any widow entitled to the benefits of said 
fund, or upon such father or mother ceasing to be dependent, then 
such payments to them shall cease. 

1500. Retired members subject to orders of superintendent. — 8. 
A member of such police force placed on the retired list shall be sub- 
ject to the orders and discipline of the superintendent of police of such 
city, and shall perform such duties as may be required of him and for 
which, in the opinion of the police surgeon of such city, he may be 
fit, and for any refusal to obey the orders of said superintendent and 
for a breach of said discipline, the said superintendent of police shall 
report the same at once to the board of safety for such action as, by it, 
may be deemed proper for the good of the police force of such city and 
for the public, and shall be subject to a punishment and to dismissal 
in the same manner as officers in regular active service. And any 
pension such retired member may have received shall cease with his 
expulsion and such pension for any refusal to obey orders and breach 
of discipline as aforesaid shall be subject to whatever orders may be 
deemed proper by said board of safety. 

1501. Duties of police sui'geon — Examinations. — 9. It shall be 
the duty of the police surgeon of such city to make all examinations 
of the members of the police force of such city, whenever requested to 
do so by the board of trustees of the police pension fund of such city, 
or whenever any such member request him to do so for the purpose of 
certifying to his physical or mental condition to said board, or when- 
ever he deems it proper to do so, and he shall thereupon certify to 
said board the true physical or mental condition of such person by 
him examined. 

1502. Payment of claims. — 10. If, at any time, there should not 
be sufficient money to the credit of such police pension fund to pay all 
claims against it in full, claims on account of the death of members of 
such police force, if there be any such, shall be first paid in full with 
as little delay as possible, after which an equal percentage shall be 



907 EDUCATION. § 1503 

paid upon all other claims to the fall extent of the funds on hand, un- 
til such fund be replenished so as to pay them in full. 

1503. Time aud place of payment. — 11. All pensions herein pro- 
vided for shall be paid by the treasurer of said board at his office at 
the same time, and in such installments as the members of the police 
force of such city are paid. 

1501, Pensions exempt, — 12. All pensions granted and payable 
out of said police pension fund shall be and are exempt from seizure 
or levy upon attachment, execution, supplemental process, and all 
other process, whether mesne or final; and such pensions or any pay- 
ment of the same shall not be subject to sale, assignment or transfer 
by any beneficiary. 

1505. Penalty for failure to account for funds. — 13. Any member 
of such police force failing or neglecting to account for and turn over 
to the secretary of said fund within three days after the receipt of the 
same all moneys received by him from any source for or because of 
any service or duty connected with or performed by such member of 
such police force as a police officer, shall, upon proof of the same to 
the satisfaction of the board of trustees of such fund, be deprived of 
all rights to such pension fund, and shall also be expelled from such 
police force by the board of safety of such city for such failure or neg- 
lect. Said board of trustees shall, however, first give to such officer 
three days' notice to appear before them and show cause why he should 
not be deprived of all his rights to such fund, because of such failure 
or neglect. 

1506. Pensions discontinued for offenses and misconduct. — 14. 
Whenever any person who shall have received any benefit from said 
fund shall be convicted of any felony, or of any misdemeanor for 
which he shall be adjudged to be imprisoned, or shall become an ha- 
bitual drunkard, or shall become a non-resident of this state, or shall 
fail to report himself for examination for duty as required herein, un- 
less excused by the board of trustees of such city, or shall disobey the 
requirements of said board in respect to said examination for duty, or 
shall fail to perform such duty as may be required of him, if found 
able to perform such duty, then such board shall order that the pen- 
sion allowed and paid to him shall cease, until the further order of 
such board. 

ARTICLE 11.— EDUCATION. 

Property conveyed to township. 
Control by township trustee. 
Surplus special school revenue in 

cities and towns. ' 
Tax — Collection and payment. 
Bonds for school buildings. 
Use of proceeds. 
Special tax. 
Condition before buildinsr. 



SEC. 




SEC. 


1507. 


Towns and cities. 


1514. 


1508. 


School trustees in cities and towns. 


1515. 


1509. 


Duties of school trustees — Graded 
high schools. 


1516. 


1510. 


Term of school. 


1517. 


1511. 


Management of school property. 


1518. 


1512. 


Schools, control of in certain towns. 


1519. 


1513. 


Town may abandon control of 


1520. 




schools. 


1521. 



§1507 



MISCELLANEOUS STATUTES AND PROVISIONS. 



908 



SEC. 

1522. Surplus special school revenue. 

1523. Title to school property. 

1524. Annexation of territory — Title to 

school property. 

1525. Annexation — Reimbursement of 

school township. 

1526. Suits, how brought. 

1527. Donations by counties, cities or 

towns to state university. 

1528. Agreements and conditions of dona- 

tion. 

1529. Bonds, issue, sale. 

1530. Only one donation. 

1531. Aid to educational institutions — Pe- 

tition. 



SEC. 

1532. Appropriating money — Election. 

1533. Kotice. 

1534. Election to conform to general laws. 

1535. Form of ballot. 

1536. Certificate of vote. 

1537. Board of canvassers — Duties. 

1538. Tax levy. 

1539. Advancements. 

1540. City may take stock. 

1541. Election officers — Pay. 

1542. Forfeiture of rights. 

1543. Jurisdiction of circuit courts. 

1544. Tax-payers released. 



Education.— Constitution, art. 8, R. S. 1894, §§ 182-189 ; Burns' Supp. 1897, §§ 182, 183 ; 
R. S. 1894, ch. 56 (§§5750-6033); Burns' Supp. 1897, chs. 56-56a (§§5750-6033j) ; Acts 
1899, pp. 434, 547. 

See chapter note preceding § 1308, ante. 



[Acts 1865, p. 3. In force March 6, 1865.] 

1507. Towns and cities. — 4. Each civil township and each in- 
corporated town or city in the several counties of the state is hereby 
declared a distinct municipal corporation for school purposes, by the 
name and style of the civil township, town or city corporation re- 
spectively, and by such name may contract and be contracted with, 
sue and be sued, in any court having competent jurisdiction; and 
the trustees of such township, and the trustees provided for in the 
next section of this act, shall, for their township, town or city, be 
school trustees, and perform the duties of clerk and treasurer for 
school purposes. R. S. 1894, § 5914. 

School corporation. — Each civil township and each incorporated town or city is a 
corporation for school purposes distinct from the civil corporation, and, as such, may 
contract and may be contracted with , sue and be sued, in any court having competent juris- 
diction. Harrison S. Tp. v. McGregor, 96 Ind. 185 ; McLaugWin v. Shelby Tp., 52 Ind. 
114; School Town of Princeton v. Gebhart, 61 Ind. 187; Gardner v. Haney, 86 Ind. 
17; Wright v. Stockman, 59 Ind. 65; Jarvis v. Robertson, 126 Ind. 281; Braden v. 
Leibenguth, 126 Ind. 336; Middleton v. Greeson, 106 Ind. 18, 24: Wilcoxon v. City of 
Bluffton, Ind. Sup. Ct., June 14, 1899. 

School property. — If the property of one school corporation is taken into the limits 
of another school corporation, the title to such property becomes vested in the latter 
corporation. School Town of Leesburg v. Plain School Tp., 86 Ind. 582; School Tp. of 
Allen V. School Town of Macy, 109 Ind. 559; Board, etc., v. Center Tp., 143 Ind. 391. 
See post, §§ 1524, 1525. 

Cities — School property. — A city, organized under the general law for the incorpora- 
tion of cities, has no power to buy, and give its promissory notes for, a county semi- 
nary, though for school purposes in the city. That power belongs to the school corpo- 
ration of the city. State v. City of Terre Haute, 87 Ind. 212. 

School township— Contract— Mistake— Reformation.— If a contract made by a 
school township appears upon its face to be made by the civil township, it may, in an 
action thereon against the school township be reformed upon allegation of mutual mis- 



909 EDUCATION. § 1508 

take, and enforced against the latter corporation. Spai-ta School Tp. v. Mendell, 138 
Ind. 188. 

Civil corporation not liable for teacher's salary.— A civil township is not liable on 
a contract of the township trustee, with a teacher of a common school, even though the 
contract is made in the name of the civil township. Harrison Tp. v. McGregor, 67 Ind. 
380. 

Contract for school-liouse. — A civil township has no authority to make a contract ior 
the erection of a school-house. McLaughlin v. Shelby Tp., 52 Ind. 114. 

Contract powers— Limitation — Attorneys' fees. — Persons who deal with school 
corporations are bound to know the limitations placed upon them by law ; a school 
township has no authority to bind the school corporation for the payment of attorneys' 
fees in a note, such power not having been conferred by the statute. Snoddy v. Wa- 
bash School Tp., 17 App. 284; see Noble School, etc., Co. v. Washington School Tp., 4 
App. 270. 

[Acts 1875, p. 135. In force March 12, 1875.] 

1508. School trustees in cities and towns. — 5. The common coun- 
cil of each city and the board of trustees of each incorporated town of 
this state shall, at their first regular meeting in the month of June, 
elect three school trustees (who shall hold their ofhce one, two and 
three years respectively, as said trustees shall determine by lot at the 
time of their organization), and, annually thereafter, shall elect one 
school trustee, who shall hold his office for three years. Said trustees 
shall constitute the school board of the city or town ; and, before en- 
tering upon the duties of their office, shall take an oath faithfully to 
discharge the duties of the same. They shall meet within five days 
after their election, and organize by electing one of their number as 
president, one as secretary, and one as treasurer. The treasurer, be- 
fore entering upon the duties of his office, shall execute a bond, to 
the acceptance of the county auditor, conditioned as in ordinary offi- 
cial bonds, with at least two sufficient freehold sureties, who shall 
not be members of said board, in a sum not less than double the 
amount of money which may come into his hands, within any one 
year, by virtue of his office. The president and secretar}^ shall each 
give bond, with like sureties, to be approved by the county auditor, 
in any sum not less than one-third of the treasurer's bond. All va- 
cancies that may occur in said board of school trustees shall be filled 
by the common council of the city or board of trustees of the town ; 
but such election to fill a vacancy shall only be for the unexpired 
term. The board of school trustees shall, each year, within five days 
after the annual election of a member, reorganize their board and exe- 
cute their respective bonds for the ensuing year. Said trustees shall 
receive for their services such compensation as the common council of 
the city or the board of trustees of the town may deem just ; which 
compensation shall be paid from the special school revenue of the city 
or town. R. S. 1894, § 5915. 

Duty of common council and board of trustees. —Under this section it was the dutj^ 
of common councils and boards of trustees at their first regular meeting in June, 1875, 
to elect three school trustees, who should hold their offices for one, two and three yeara 
respectively, as might be determined by lot. Blakemore v. Dolan, 50 Ind. 194. 



§ 1509 MISCELLANEOUS STATUTES AND PROVISIONS. 910 

Trustees may be elected at meetings other than the first regular meeting in June. 
Sackett v. State, 74 Ind. 486. 

School trustee. — A school trustee selected to fill a vacancy is entitled to hold the 
office until his successor is elected and qualified. Sackett v. State, 74 Ind. 486. 

School trustees continue in office until their successors are elected and qualified. 
School Town of Milford v. Powner, 126 Ind. 528. 

A member of the board of trustees of a town may be elected a school trustee of such 
town. State v. Meyer, 60 Ind. 288. 

The office of school trustee is a lucrative office. Chambers v. State, 127 Ind. 365. 

[Acts 1899, p. 424. In force March 4, 1899.] 

1509, Duties of school trustees — Graded high schools. — 1. That 
the school trustees shall take charge of the educational affairs of their 
respective townships, towns and cities. They shall employ teachers, 
establish and locate conveniently a sufficient number of schools for 
the education of the children therein, and build or otherwise provide 
suitable houses, furniture, apparatus and other articles and educa- 
tional appliances necessary for the thorough organization and efficient 
management of said schools. Such school trustees may also establish 
and maintain in their respective corporations at least one separate 
graded high school, to which shall be admitted all pupils who are 
sufficiently advanced: Provided, That the school trustees of two or 
more school corporations ma}^ establish and maintain joint graded 
high schools in lieu of separate graded high schools, and when so 
done they jointly shall have the care, management and maintenance 
thereof: Provided further, That any trustee instead of building a sep- 
arate graded high school for his township may pay the tuition of 
pupils of his township competent to enter a graded high school, to 
another school corporation, such payment to be made out of the 
special school revenue and not to exceed ten dollars for any one pupil in 
each year: Provided further, That all payments of tuition provided 
for under this act, heretofore made by school trustees for such high 
school privileges are hereby legalized: Provided further, That no such 
graded high school shall be so built unless there are at the time such 
house is built at least fifteen common school graduates of school age 
residing in the township. 

1510, Term of school. — 2. Said school trustees shall maintain in 
each school corporation a term of school at least six months in dura- 
tion and shall authorize a local tuition levy sufficient to conduct a six 
months' term of school each year based on estimates and receipts from 
all sources for the previous year which may include that received from 
the state's tuition revenue: Provided, Such levy shall not exceed the 
limit now provided by law. 

1511, Management of school property. — 3. Said school trustees 
shall have the care and management of all property, real and per- 
sonal, belonging to their respective corporations for common school 
purposes, except the congressional township school lands, which 
lands shall be under the care and management of the trustee of the 
civil township to which such lands belong. 



911 EDUCATION. § 1512 

[Acts 1897, p. 115. In force March 2, 1897.] 

1512, Schools, control of in certain towns. — 1. That in all incor- 
porated towns of this state having a population of fifteen hundred 
persons or less, as shown by the last preceding United States census, 
the board of trustees of any such incorporated town of this state 
which has not taken control of the public schools, but which are now ^ 
under the control of the township trustee in which such town is 
located, may, at their option, refuse to elect school trustees as pro- 
vided for in section 4439 of the Revised Statutes of 1881 [R. S. 1894, 

§ 5915] , and in such case the care and control of the schools of such 
incorporated town shall be and continue under the control of the town- 
ship trustee of the school township in which such incorporated town 
shall be situated, the same as the schools of such school township not 
located within the limits of such incorporated town, and in any such 
town no school town corporation shall exist until school trustees are 
elected therefor according to section 4439 of the Revised Statutes of 
1881 [R. S. 1894, § 5915]. Burns' Supp. 1897, § 5915a. 

[Acts 1899, p. 373. In force April 28, 1899.] 

1513. Town may abandon control of schools. — 1. That any incor- 
porated town in the state, that has no school indebtedness, the inhab- 
itants of which does not exceed fifteen hundred, as shown by the last 
preceding general census, may, through its town board of trustees, 
abandon and discontinue its management and control of public schools 
within such incorporated town, and abolish the board of school trus- 
tees therein. 

iSM, Property conveyed to township, — 2. The town board of trus- 
tees of any such incorporated town, upon deciding to abandon and dis- 
continue the control of the public schools therein, shall make and 
cause to be made a good and sufficient deed, conveying all real estate 
belonging to such school town to the township trustee of the township 
in which such incorporated town is located; and shall transfer all the 
personal property and fixtures belonging to such school town to such 
township trustee, all of which shall be accepted and held by such 
township trustee for the use and purposes of the school township 
wherein such town is located. 

1515. Control by township trustee. — 3. After the requirements set 
forth in the preceding section are complied with, the township trustee 
shall have full and complete control of all the schools within such 
town, and shall conduct the same as provided for by law for the other 
schools of such township. 

[Acts 1877, p. 18. In force March 3, 1877.] 

1516. Surplus special school revenue in cities and towns. — 1. The 

board of school trustees of any city or incorporated town in this state 
is hereby authorized and empowered to pay over to the common coun- 
cil or board of trustees of such city or town any surplus special school 
revenue in the hands of such school trustees, not necessary to meet 



§ 1517 MISCELLANEOUS STATUTES AND PKOVISIONS. 912 

current expenses — such excess of the revenue, aforesaid, to be applied 
to the payment of the interest or principal, or both, of any indebted- 
ness incurred under the provisions of the act of March 8, 1873, au- 
thorizing cities and incorporated towns to negotiate and sell bonds to 
procure means to erect and complete unfinished school buildings, and 
to purchase any ground and building for school purposes, and to pay 
debts contracted for the erection, completion and purchase of build- 
ings and grounds. R. S. 1894, § 5926. 

[Acts 1871, p. 20. In force March 3, 1871.] 

1517. Tax — Collection and payment. — 5. All levies of taxes made 
by order of the board of school commissioners shall be certified by its 
president and secretary to the city clerk, who shall cause the same to 
be placed on the tax duplicate against all property assessed for city 
taxes; and the city treasurer shall collect the same as city taxes are 
collected, and shall, once in each month, pay over all such taxes so 
collected to the treasurer of the board of school commissioners of such 
city. All taxes hereafter collected by the county treasurer for school 
purposes on levies hereafter made, and all moneys that maybe here- 
after distributed as part of the common school fund by county ofiicers, 
to which the common schools of such city shall be entitled, shall be 
paid over by the county treasurer to the treasurer of the board of 
school commissioners; and all taxes hereafter collected by the city 
treasurer on levies heretofore made for school purposes, shall be paid 
over by such treasurer, once in each month, to the treasurer of the 
board of school commissioners of such city. R. S. 1894, § 5943. 

[Acts 1873, p. 60. In force March 8, 1873.] 

1518, Bonds for school buildings. — 1. Any city or incorporated 

town in this state which shall, by the action of its school trustees, 
have purchased any ground and building or buildings; or may here- 
after purchase any ground and building or buildings; or has com- 
menced, or may hereafter commence, the erection of any building or 
buildings for school purposes; or which shall have, by its school 
trustees, contracted any debts for the erection of such building or 
buildings, or the purchase of such ground and building or buildings; 
or such trustees shall not have the necessary means with which to 
complete such building or buildings, or to pay for the purchase of 
such ground and building or buildings, or pay such debt— may, on 
the filing by the school trustees of said city or town of a report, under 
oath, wdth the common council of such city, or the board of trustees 
of such town, showing the estimated or actual cost of any such ground 
and building or buildings, or the amount required to complete such 
building or buildings, or purchase such ground and building or build- 
ings, or the amount of such debt, on the passage of an ordinance 
authorizing the same by the common council of said city or the board 
of trustees of such town, issue the bonds of such city or town to an 
amount not exceeding in the aggregate fifty thousand dollars, in 



913 EDUCATION. § 1519 

denominations not less than one hundred nor more one thousand 
dollars and payable at any place that may be designated in the bonds 
(the principal in not less than one year nor more twenty years after 
the date of such bonds, and the interest annually or semi-annu- 
ally, as may be therein provided) to provide the means with which 
to complete such building or buildings, or to pay for the purchase of 
such ground and building or buildings, and to pay such debt. Such 
common council or board of trustees may, from time to time, negotiate 
and sell as many of such bonds as may be necessary for such purpose, 
in any place and for the best price that can be obtained therefor in 
cash: Provided, That such bonds shall not be sold at a price less than 
ninety-four cents on the dollar. R. S. 1894, § 5975. 

Issuing' bonds. — As to what facts are necessary to be shown in order to authorize the 
issue of bonds, see Williams v. Albion, 58 Ind. 329. 

Bonds issued under this section constitute liabilities of the civil city or town, and 
should be included in estimating such city or town's indebtedness under the constitu- 
tional two per cent, limitation. Wilcoxon v. City of Bluffton, Ind. Sup. Ct., June 14, 
1899. 

Prior to act of March 9, 1891 (R. S. 1894, §4377; ante, § 1232), incorporated towns 
might issue bonds to procure money with which to build school-houses without a peti- 
tion from the property owners. Clark v. Noblesville, 44 Ind. 83. 

Bonds issued under this section are negotiable by delivery and are not ultra vires and 
void, merely because the school-house is not located within the corporate limits of the 
town. Gardner v. Haney, 86 Ind. 17 ; City of Bloomington v. Smith, 123 Ind. 41. 

Brokers — Compensation.— Brokers may be employed to sell the bonds and the cor- 
poration will be liable for their services. Reed v. Orleans, 1 App 25. 

3Iunlcipal bonds— Towns can not issue neg-otiable securities.— Under the laws in 
force in May, 1878 (R. S. 1894, §§ 4357, 4377, 5975, 5976), upon the subject of the power 
of towns to borrow money, contract loans, incur debts and issue bonds, towns had no 
power of issuing, for sale in open market, negotiable securities, in the form of bonds 
and coupons, which, in the hands of bona fide purchasers before maturity, will be sub- 
ject to no legal or equitable defenses in favor of the maker. . Merrill v. Monticello, 138 
U. S. 673; Hopper v. Covington, 118 U. S. 148. 

1519. Use of proceeds. — 2. The proceeds of the sales of such 
bonds shall be paid to the said school trustees, to enable them to erect 
or complete such building or buildings and pay such debt. But before 
payment to them, such school trustees shall file with the county auditor a 
bond, payable to the state of Indiana, in a sum not less than the full 
amount of the said money so to be paid to them, and with security to 
be approved by said auditor, conditioned for the faithful and honest 
application of such money to the purpose for which the same was pro- 
vided; and such trustees, and their surety or sureties, shall be liable 
to suit on such bond for any waste, misapplication or loss of such 
money, in the same manner as now provided for waste or loss of 
school revenue. R. S. 1894, § 5976. 

[Acts 1875, p. 29. In force March 11, 1875.] 

1520. Special tax, — 3. In addition to levying the tax b}^ cities or 
incorporated towns for general purposes, now authorized by law, the 
common council of any such cities, and boards of trustees of any such 
incorporated towns as shall avail themselves of the provisions of this 

CiT. AND To.— 58 



§ 1520 MISCELLANEOUS STATUTES AND PROVISIONS. 914 

act, are hereby authorized and required to levy, annually, a special 
additional tax, at the same time and in the same manner as other 
taxes of such city or town are levied, sufficient to pay the interest and 
principal of said bonds falling due; which additional special tax shall 
be assessed and collected as the taxes for state and county revenue are 
assessed and collected. The treasurer of said city or town shall keep 
accurate account of the revenue arising from said special tax, and shall 
in his reports, when required by the city or town authorities, show the 
amount thereof received, the amount disbursed, and the amount 
thereof, if any, remaining delinquent. He shall pay out the same 
only by the authority of the common council of said city or board of 
trustees of such town; and shall permit the same to be applied to no 
other purpose than the payment of the principal and interest of such 
bonds; and official bonds of city and town treasurers shall be con- 
strued to cover and include revenue arising from this source. Persons 
residing outside of any such city or town, and electing to be trans- 
ferred to such town or city for educational purposes, or W'ho shall 
send their children to the school taught in any such building, shall, 
with their property, be liable to such tax, as if they resided in such 
city or town, on all property owned by said person in the tovfnship 
where such city or town is located: Provided, always, That nothing 
in this act shall be construed to prevent the school trustees of such 
town or city from admitting pupils into such schools from outside 
such city or town, in their discretion, upon the payment of tuition 
therefor, and without subjecting the property of their parents to such 
taxation, when such schools are not crowded and their admission shall 
in no way, interfere with the progress of the children within such 
city or town: Provided, further, That the additional special tax, 
hereby authorized, shall not, in any one year, exceed fifty cents on 
any one hundred dollars of taxable property and one dollar on each 
poll. R. S. 1894, § 5977. 

This section is constitutional. Robinson v. Schenck, 102 Ind. 307; Kent v. Town of 
Kentland, 62 Ind. 291. 
School corporation— Incorporated town— Location of school-house— Validity of 

bond. — Each incorporated town is by law a school corporation, and, as a rule, the 
school grounds and school-houses of such corporation should be located within the cor- 
porate limits of the town ; but the bonds of such town, negotiated and sold to procure 
means for the erection and completion of a school-house for the town, are not ultra 
vires and void, merely because such school-house is not located within the corporate 
limits of such town. Gardner v. Haney, 86 Ind. 17. 

Special additional tax— Duty of trustees— Mandate. — Under this section it is the 
duty of trustees of an incorporated town to levy annually a special additional tax suffi- 
cient to pay the interest and principal of the bonds of the town issued for school build- 
ings, and falling due ; and where it appears that the trastees of the town have failed, 
neglected and refused to discharge their statutory duty, a writ of mandate is the proper 
legal remedy. Gardner v. Haney, 86 Ind. 17. 

Persons who are transferred from one school corporation to another must pay taxes 
in the corporation to which they are transferred, as well as in the one in which they 
reside. Johns v. State, 130 Ind. 522. 

Persons who send their children to school in a corporation within a township other 



915 EDUCATION. § 1521 

than the corporation in which such persons Hve, are liable to pay school taxes upon 
their property situated in such township for the benefit of such corporation. Kent v. 
Town of Kentland, 62 Ind. 291 ; Robinson v. Schenck, 102 Ind. 307. 

[Acts 1879 S., p. 86. In force March 20, 1879.] 

1521. Condition before building. — 1. Before the school trustees 
of any incorporated town or city in this state shall purchase any 
ground for school purposes, or enter into any contract for the build- 
ing of any school building or buildings, they shall file a statement 
with the trustees of such incorporated town, or common council of 
such city, showing the necessity for such purchase of ground, or the 
erection of such building or buildings, together with an estimate of 
the cost of such ground or building or buildings, and the amount of 
means necessary to be provided to pay for such ground or building or 
buildings. And they shall not purchase any ground, or enter into 
any contract for the building of any school building or buildings, 
until such action be approved by the trustees of such incorporated 
town, or by the common council of such city: Provided, Jioivever, 
That there shall be nothing in this act so construed as to affect any 
purchase of grounds or contract made for the erection of any build- 
ing or buildings, for school purposes, prior to the taking effect of this 
act. R. S. 1894, § 5978. 

See Wilcoxon v. City of Bluffton, Ind. Sup. Ct., June 14, 1899. 

Contract lor erection of school-house— Abandonment.— If the parties who have 
contracted with a town for the erection of a school-house, the contract providing that 
the town may complete the building and charge the expense to the contractors if they 
fail to complete the same, abandon the contract before completion, they can not re- 
cover of the town for the value of the materials left by them, if the cost of completion 
above the contract price exceeds the value of the materials. School Town of Wina- 
mac V. Hess, 151 Ind. 229. 

[Acts 1879 S., p. 95. In force May 31, 1879.] 

1522. Surplus special school revenue. — 1. It shall be the duty of 
the board of school trustees of any city or incorporated town in this 
state to pay over to the common council or board of school trustees of 
such city or town any surplus special school revenue in the hands of 
such school trustees, not necessary to meet current expenses; such ex- 
cess of the revenue aforesaid to be applied for the payment of the 
interest or principal, or both, of any indebtedness incurred under the 
provisions of the act of March 8, 1873, authorizing cities and incorpo- 
rated towns to negotiate and sell bonds to procure means to erect and 
complete unfinished school buildings, and to purchase any ground and 
building for school purposes, and to pay debts contracted for the 
erection and purchase of buildings and grounds. R. S. 1894, § 5979. 

1523. Title to school property. — 157. The title to all lands ac- 
quired for school purposes shall be conveyed to the township, incor- 
porated town, or city for which it is acquired, in the corporate name 
of such township, town or city, which is used for school purposes, for 
the use of common schools therein. In all cases in which the title to 
any such land is vested in any other person or corporation than as 



§ 1524 MISCELLANEOUS STATUTES AND PROVISIONS. 916 

above provided, it shall be the duty of the trustee for school purposes 
of the township, town or city to procure the title to be vested as in 
this section provided. R. S. 1894, § 5996. 

Conveyance to scliool township for school purposes— Implied condition— Rever- 
sion. — Where land is conveyed by warranty deed to a school township for the use of 
the common schools, without any expressed condition, there is no implied condition by 
which the property would revert to the grantor upon a mere non-user of the same for 
school purposes. .Newpoint Lodge, etc., v. Town of Newpoint, 138 Ind. 141. 

Any negligence or inattention to duty on the part of the school trustee could not 
work a forfeiture of the property, of which he had but temporary charge. Newpoint 
Lodge, etc., v. Town of Newpoint, 138 Ind. 141. 

[Acts 1893, p. 194. In force March 3, 1893.] 

1524:,— Annexation of territory— Title to school property. — 1. That 

whenever there has been, or may hereafter be, by proper proceedings, 
any territory annexed to any city, or incorporated town of this state, 
which territory included within such boundary as annexed any real 
estate, which prior to such annexation was the property of the school 
township adjoining such town or city, and used for school purposes 
by such school township, such real estate shall by virtue of such an- 
nexation at once become in fee simple, the property of the school cor- 
poration of such town or city, within the corporate boundaries of 
which it is found after such annexation of territory, and it is hereby 
made the duty of the township trustee to at once execute and deliver 
to the school corporation of such town or city, a deed conveying such 
title as his school township has, for all school property which has 
passed by such proceedings from the territorial jurisdiction of the 
township to that of a town or city. R. S. 1894, § 5997. 

This section is constitutional. Board, etc., v. Center Tp., 143 Ind. 391. 

Territory annexed— School property — Title.— When lands are annexed to a city or 
town and there is located within the territory annexed school property of a school 
corporation the title to such property vests in the school corporation to which such 
lands are annexed. Board, etc., v. Center Tp., 143 Ind. 391; see Heizer v. Yohn, 37 
Ind. 415; State v. Shields, 56 Ind. 521; Eeckert v. City of Peru, 60 Ind. 473; School 
Town of Leesburgh v. Plain School Tp., 86 Ind. 582; School Town of Allen v. School 
Town of Macy, 109 Ind. 559; Newpoint Lodge, etc., v. School Town of Newpoint, 138 
Ind. 141. 

School property. — When a new school corporation is formed within the limits of an- 
other, the new corporation becomes vested w^ith the title to the school property within 
its boundaries. School Town of Leesburgh v. Plain School Tp., 86 Ind. 582 ; School Tp. of 
Allen V. School Town of Macy, 109 Ind. 559 ; Carson v. State, 27 Ind. 465 ; see Eeck- 
ert V. City of Peru, 60 Ind. 473. 

One school corporation can not own property within the limits of another school 
corporation. State v. Shields, 56 Ind. 521 ; School Town of Leesburgh v. Plain School 
Tp., 86 Ind. 582. 

[Acts 1899, p. 376. In force March 3, 1899.] 

1525. Annexation — Reimbnrsement of school township, — 1. That 
in all cases where any city or incorporated town of this state has an- 
nexed or shall hereafter annex any territory, or where any town shall 



917 EDUCATION. § 1526 

be hereafter incorporated in which territory so annexed or incorpo- 
rated there was or shall be the property of any school township used 
by such school township for school purposes, and such school town- 
ship was, or shall be at the date of such annexations, indebted either 
for the purchase of said school property, or for buildings constructed 
thereon, which indebtedness is unpaid at the date of the passage of 
this act, it shall and is hereby made the duty of the school corporation 
of such city or incorporated town to pay such indebtedness, and such 
school corporation is hereby declared to be and made liable therefor. 
Until such city or town school corporation shall have paid such in- 
debtedness it shall not be entitled to possession of such property, or to 
a deed therefor, and upon paying such indebtedness by said school 
township such school township shall be entitled to recover the amount 
so paid from said city school corporation with interest at the rate of 
six per cent, per annum from date of payment, and on payment of 
such amount the said school corporation shall be entitled to a deed 
and possession of such property as now by law provided. 

[Acts 1865, p. 3. In force March 6, 1865.] 

1526, Suits, how brought. — 145. Suits brought on behalf of the 

schools of any township, town or city shall be brought in the name of 
the state of Indiana, for the use of such township, town or city. R S. 
1894, § 6025. 

Suits in corporate name.— Suits by or against a school corporation should be brought 
in the name of the school corporation as designated by the statute. Carmichael v. Law- 
rence, 47 Ind. 554; Greensboro Tp. v. Cook, 68 Ind. 139; Wright v. Stockman, 59 Ind. 
65; Wingate v. Harrison Tp., 59 Ind. 520; Utica Tp. v. Miller, 62 Ind. 230; City of 
Huntington v. Day, 55 Ind. 7; Hornby v. State, 69 Ind. 102; Jarvis v. Eobertson, 126 
Ind. 281; Braden v. Leibenguth, 126 Ind. 336; Middleton v. Greeson, 106 Ind. 18, 24. 

An action to recover money due to a school corporation may be brought in the name 
of the state on the relation of the corporation. Hadley v. State, 66 Ind. 271. 

The corporate name of the corporation may be stated in the title of the pleading or in 
the body thereof. Town of Noblesviile v. McFarland, 57 Ind. 335. 

School corporation— Actions— Parties.— An action to recover for materials furnished 
and services rendered by the plaintiff in the erection of a school-house, under the em- 
ployment of the school trustees of a city, should be brought, not against such trustees, 
nor against the city in her ordinary municipal capacity, but against the school corpora- 
tion, by the name and style of the ''School city of ," filling the blank with the 

name of the city. The summons should be served on the school trustees. Sims v. Mc- 
Clure, 52 Ind. 267 ; City of Huntington v. Day, 55 Ind. 7 ; Jackson Tp. v. Barnes, 55 
Ind. 137. 

[Acts 1897, p. 42. In force February 23, 1897.] 

1527. Donations by counties, cities or towns to state university. — 1 . 

That whenever fifty (50) freeholders and taxpayers of any county in 
this state, or twenty-five (25) freeholders of any city, town, or town- 
ship in this state, in which any state university may be situate, shall 
petition the board of commissioners of such county, in the case of the 
county or township, or the common council, in the case of a city, or 
the board of trustees of a town in case of a town, to make a donation 



§ 1528 MISCELLANEOUS STATUTES AND PROVISIONS. 918 

to such state university, in any sum not exceeding $25,000, as to such 
county or city; $10,000, as to said township or town, it shall be 
lawful for such board of commissioners, on behalf of such county, or 
township, or the common council, on behalf of such city, or board 
of trustees on behalf of such town to make such donation, not exceed- 
ing the amount so named in such petition, and to enter in their re- 
spective records the proper order, ordinance, or resolution therefor, 
and which shall be a sufficient justification for the proper officer to 
draw his warrant therefor. Burns' Supp. 1897, § 6166c?. 

1528. Agreements and conditions of donation. — 2. Such board of 
county commissioners, common council of such city, and board of 
trustees of such town, are hereby authorized for and on behalf of their 
respective corporations, to make all proper agreements with any such 
state university, with reference to the purpose for which such dona- 
tions shall be used; and the terms and conditions on which donated 
and accepted, and when so made and such donation accepted shall be 
binding on such state university accepting the same. Burns' Supp. 
1897, § 6166e. 

1529. Bonds— Issue — -Sale. — 3. For the purpose of raising the 
money with which to make such donation, the board of commissioners 
of such county are hereby authorized to issue the bonds of such county, 
or township, and such common council, and board of trustees of such 
town, the bonds of such city, or town, respectively, none of which 
shall bear a higher rate of interest than six (6) per cent., payable 
annually, nor run a longer time than six (6) years from their date of 
issue, and shall not be sold for less than their face value, and accrued 
interest. Burns' Supp. 1897, § 6166/. 

1530. Only one donation.— 4. If either the county, city, town, or 
township, makes such donation, it shall not be lawful for any one or 
more of such corporations to make a donation under this act. Burns' 
Supp. 1897, § 6166^. 

[Acts 1899, p. 416. In force April 27, 1899.] 

1531. Aid to educational institutions — Petition.— 1. That when a 
petition designated as a county petition signed by at least three free- 
holders of each township of any county in this state containing a 
population of not more than 29,000 nor less than 28,000 according to 
the census of 1890, or a petition designated as a township petition, 
signed by at least twenty-five freeholders of any township of such 
county, or a petition designated as a city petition, signed by at least 
twenty-five freeholders of any city of such county, shall be presented 
to the board of commissioners of such county, or in the case of a city, 
to the board of aldermen or council, or proper city officers, at any 
regular or special session thereof, asking such count}^ township or 
city, as the case may be, to make an appropriation of money, not ex- 
ceeding two per centum of the amount of the taxable property in such 
county, township or city as the case may be, as shown by the last pre- 
ceding tax duplicate, to aid any company, association or corporation 



919 EDUCATION. § 1532 

in locating and establishing a high school, academy, college, univer- 
sit}^ and other educational institutions, or to erect and repair suitable 
buildings and properly equip the same for the use of such high school, 
academy,college,university and other educational institutions, such peti- 
tion shall be sufficient evidence of the public utility of the educational 
institution, thus to be aided and encouraged, and it shall be the duty 
Oi such board of commissioners, or board of aldermen, city council, 
or other proper city officers, after being satisfied that such petition 
has been properly signed by the requisite number of freeholders, as 
aforesaid, to cause the same to be entered at full length upon their 
records. 

1532. Appropriating money — Election. — 2. Said board of com- 
missioners, or in case of a city, said board of aldermen, or council or 
proper officers, shall thereupon order the polls at the several voting 
places in said county, township or city, as the case may be, so peti- 
tioning, to be opened on a day to be named in the order, which shall 
not be less than thirty days nor more than sixty days thereafter, and 
the votes of the legal voters of said county, township or city named in 
said petition to be taken upon the subject of appropriating money by 
such county, township or city named in such petition, for the purpose 
of aiding such educational institution as prayed for in said petition. 
The judges, inspectors and clerks of election shall be governed in the 
reception of votes by the laws then in force, regulating general elec- 
tions. 

1533. Notice.- — 3. The auditor of such county shall immediately 
give notice, to be published for at least four weeks successively in 
some weekly newspaper in general circulation in said county, and by 
printed hand bills to be posted in three public places in each town- 
ship or city, where the appropriation is prayed for in the petition. 
Said hand bills shall be posted by the sheriff of the county three 
weeks prior to the day fixed for taking a vote as named in said order. 
Said notices shall specify the amount proposed to be appropriated, 
either in aggregate or the percentum on the taxable property, and the 
auditor of the county shall make his official certificate that said notice 
was published, and said sheriff shall make his like certificate that said 
hand bills were posted as required by this act, which certificate shall 
be entered upon the records of the board of commissioners, or in the 
case of a city, the board of aldermen, or the council or other proper 
city officers, and shall be sufficient evidence of the facts therein 
stated . 

1534. Election to conform to general laws. — 4. Said elections 
shall be held in all respects in conformity with the laws then in force 
for holding general elections. 

1535. Form of ballot. — 5. The ballots used for such voting as 
provided for in this act, shall be written or printed, and those cast for 
the appropriation shall contain the words, ''for the appropriation," 
and those cast against the appropriation shall contain the words, 



§ 1536 MISCELLANEOUS STATUTES AND PROVISIONS. 920 

'^against the appropriation," and if two or more ballots shall be pur- 
posely folded together they shall be rejected. 

1536. Certificate of vote. — 6. When the ballots shall be counted, 
the board of judges shall make out a certificate under their hands, 
stating in words the number of votes given for such appropriation, 
and the number of votes against such appropriation, and such certifi- 
cate, together with one of the lists of voters, or poll books, and one of 
the tally sheets, shall be deposited with the inspector, or with one of 
the judges selected by the board of judges. 

1537. Board of canyassers — Duties , — 7 . The inspectors of precincts , 
or the judges of the election to whom such certificates, poll books and 
tally sheets shall have been delivered, shall constitute a board of can- 
vassers, who shall canvass and estimate the certificates, poll books and 
tally sheets returned by each member of said board, for which purpose 
they shall assemble at the court-house on the Thursday next succeed- 
ing the day of such voting, between the hours of 10 o'clock a. m. and 
6 o'clock p. M. Said board of canvassers shall select one of their num- 
ber as chairman, and the county auditor shall act as clerk, and being 
thus organized shall carefully compare and examine the papers, and 
shall prepare and sign a statement of the whole number of votes cast, 
and the number for such appropriation, and the number against it, 
and shall file said statement of such vote with said county auditor, 
who shall record the same at full length in the records of the board of 
commissioners of said count}^, or in the case of a city, in the records 
of the board of aldermen, or council or proper city officers, and care- 
fully file away and preserve the certificates, poll books and tally sheets 
aforesaid. 

1538. Tax levy. — 8. If a majority of the votes cast shall be in favor 
of such appropriation, the board of county commissioners, or in the 
case of a city, the board of aldermen, or city council, or other proper 
city officers, at the next regular session, shall grant the prayer of said 
petition, and shall levy a special tax as prayed for in said petition, 
and specified in said notice, and cause the same to be placed upon the 
then current tax duplicate, to be collected as other taxes are collected, 
and subject to the same penalties for the non-payment thereof, when 
due: Provided, however, That the taxes upon said special levy shall be 
payable in four equal payments, one-fourth payable on or before the 
third Monday in April next, after the date of the said levy, and one- 
fourth each succeeding six months thereafter until fully paid. 

And the moneys thus collected shall be paid out by the treasurer 
collecting the same, or upon the order of said board of commissioners, 
or in the case of a city, upon the order of said board of aldermen, or 
city council, or other proper city officers. 

1539. Advancements. — 9. After the special tax [shall] have been 
levied as in this act provided, and before it has been collected, the 
board of commissioners of such county, or in the case of a city, the 
board of aldermen or city council, or other proper city officers, may 
order advancements against said fund out of any money in the county 



921 EDUCATION. § 1540 

treasury, or in the case of a city, the city treasury, not otherwise ap- 
propriated, to be refunded to the county, or in case of a city, to the 
city, when such special tax shall have been collected. 

15:1:0. City may take stock, — 10. Said board of commissioners, or 
in case of a city, board of aldermen or city council, or other proper 
city officers, may, after the assessment herein provided for, or any 
part thereof shall have been collected, or when advancements are 
made as in section 9 of this act provided, take stock in such company, 
association or corporation from time to time in the name of such 
county, or the proper township or city, as the case may be, and pay 
therefor when the same is taken, out of the moneys so collected or ad- 
vanced as aforesaid, or they may donate such moneys to such com- 
pany, association or corporation, for the purpose contemplated in 
this act, or they may loan the same for such purpose to said com- 
pany, association or corporation, taking ample security therefor upon 
such terms and conditions as they may deem proper and safe, and in 
the name of such county, township or city, as the case may be, is 
hereby authorized and empowered to bring suit against such company, 
association or corporation to enforce the terms and conditions of its 
agreements. 

154:1. Election olficers — Pay, — 11. The officers conducting the 
elections provided for in this act shall be allowed the same pay as is 
allowed for like services in case of a general election. Should the 
election result in favor of such appropriation, the expense of the elec- 
tion after being paid by the county, township or city, as the case may 
be, shall be charged against the company, association or corporation 
benefited, and deducted out of the first moneys collected by virtue of 
said appropriation. 

1542. Forfeiture of rights, — 12. A failure on the part of such 
compauy, association or corporation to perform its agreements with 
regard to such educational institutions, shall forfeit the rights of such 
company, association or corporation to the aid thus voted, unless the 
county commissioners, or in case of a city, the board of aldermen, or 
council or proper city officers, for good cause shall extend the time in 
which to perform its said agreements, and the money so levied and 
collected shall revert to and become the property of the taxpayers 
from whom the same was collected, in the proportion by them sev- 
erally paid. 

154:8. Jurisdiction of circuit court.— 13. The circuit court of such 
county shall have jurisdiction to determine, upon the complaint of 
any taxpayer who shall have paid any portion of the taxes of such 
special levy, as to whether or not such company, association or corpo- 
ration, for the benefit of which such tax was levied and collected, has 
forfeited its right to said moneys. 

1544. Taxpayers released.— 14. In all cases where the levies of 
taxes have been made in pursuance of this act and remain uncollected 
and the rights of said company, association or corporation thereto 
have been adjudged by the court to be forfeited, the taxpayers or par- 



§ 1544 MISCELLANEOUS STATUTES AND PROVISIONS. 922 

ties against whom such levies stand charged, shall be released and dis- 
charged from the payment thereof. 

Schools in cities of 30,000 or more, 70,000 or more, and 100,000 or more.— For 

laws concerning schools in the larger cities, see E. S. 1894, §§ 5936-5950, and Acts 1899, 
pp. 484-447. 

Cities of 100,000— Act of 1899— Powers and duties of city officers.— As indicated 
in note at the beginning of this chapter it is not within the scope of this work to include 
a full compilation of the school laws ; but special attention is directed to the act of 1899, 
for the reason that it imposes certain powers and duties upon city officers, and the sev- 
eral sections relating to the powers and duties of city officers are set forth in this note: 

[Acts 1899, p. 434. In force March 4, 1899.] 

Board of school commissioners— Powers. — 1. That the government of common 
schools in cities of one hundred thousand or more inhabitants, according to the last 
United States census, shall be vested in a board of school commissioners, which shall 
consist of five school commissioners. The said board of school commissioners shall 
have and exercise all the powers now conferred by an act of the general assembly of 
this state, approved March 3, 1871, entitled ^'an act providing for a general system of 
common schools in all cities of thirty thousand or more inhabitants, and for the election 
of a board of school commissioners for such cities, and defining their duties and pre- 
scribing their powers, and providing for common school libraries within such cities," 
and all acts amendatory thereof and supplemental thereto ; and also all powers now 
conferred by lav/ on boards of school commissioners in cities of thirty thousand or more 
inhabitants, according to the United States census of 1870, as well as the powers now 
conferred by law on boards of school commissioners in cities of one hundred thousand 
or more inhabitants, except as otherwise herein provided. And said board of school 
commissioners provided for by this act shall assume, pay and be liable for all the 
indebtedness and liabilities of boards of school commissioners heretofore elected under 
th6 above described acts. 

Qualifications— Ineligible to other offices.— 2. The members of such board of 
school commissioners shall be at least twenty-five years of age, residents of the city, 
and shall have been such residents for at least three years immediately preceding their 
election. They shall be ineligible to any elective or appointive office under such board 
of school commissioners and under the government of such city while holding member- 
ship in said board. They shall not be interested in any contract with or claim against 
the school city in which they are elected, either directly or indirectly. If at any time 
after the election of any member of said board, he shall become interested in any such 
contract with or claim against said school city, he shall thereupon be disquahfied to 
continue as a member of said board, and a vacancy shall thereby be created. Every 
member of said board shall, before assuming the duties of his office, take an oath before 
some one qualified to administer oaths that he possesses all of the qualifications required 
by this act, that he will honestly and faithfully discharge the duties of his office, that he 
will not, while serving as a member of such board, become interested, directly or indi- 
rectly, in any contract with or claim against said school city, and that he will not be 
influenced during his term of office by any consideration of politics or religion or any- 
thing except that of merit and fitness in the appointment of officers and the engage- 
ment of employes. No compensation shall be received by members of the board, but 
they shall be exempt from jury duty during their term of office. 

Nomination on petition— Elected at reg'ular city election.— 3. The said board of 
school commissioners shall be elected, except as specified in section four of this act, on 
a general ticket for the term of four years by the voters of such city qualified to vote at 
its city elections. The members of such board shall be elected at the regular city elec- 



923 EDUCATION. § 1544 

tion of such civil city, and shall be taken from the city at large without reference to 
districts, and such election shall be held under the provisions of the general laws gov- 
erning such city elections, so far as they are not inconsistent with the provisions of this 
act. Ivot later than thirty days before any election for members of the board of school 
commissioners provided for in this act, householders of said city may present names of 
candidates for election as members of said board of school commissioners to a board of 
canvassers, consisting of the mayor, the treasurer and the comptroller of said city, in 
the manner following: Each candidate shall be proposed in writing by not fewer than 
two hundred householders of said city. No more than one candidate may be named in 
any one petition and no person may sign more than one petition for any one election. 
Upon the presentation of such petitions to said board of canvassers, the said board of 
canvassers shall publish for five days the names proposed, in at least two of the daily 
papers of the city, and shall certify at the time required by law such nominations to 
the regular board of election commissioners for said city election, who shall prepare 
ballots printed on plain paper which shall contain the names of all such candidates, 
arranged in an order to be determined according to lot by said board of canvassers. 
There shall be nothing on said ballots, except as otherwise provided herein, and except 
the names of the candidates and the offices to be filled, together with the square in 
front of each name and a statement at the head of the ticket of the number of commis- 
sioners for w^hom the elector may vote. Such ballots shall be voted at said regular city 
election and deposited in a separate ballot box provided for such purpose. The name 
of any candidate shall not be thus published and placed on the official ballot by the 
said board of canvassers if it shall appear that he is ineligible for membership on the 
said board of school commissioners under the provisions of section two of this act. 
Each elector may vote for as many of said candidates as there are members to be 
elected, by making a cross in the square opposite the name of the candidate. The can- 
didates, in number equal to the number of members to be chosen, who have the high- 
est number of votes shall be declared elected. If at any election a member is to be 
chosen to fill a vacancy and to serve out an unexpired term, candidates may be chosen 
as above provided, but they shall in all cases be designated on the ballot as candidates 
to fill a vacancy, and the date of the unexpired term shall be stated. The vacancies in 
said board of school commissioners shall be temporarily filled by the board as soon as 
practicable after such vacancy occurs. Such member so chosen shall hold office until 
his successor be elected and qualified. His successor shall be elected at the next gen- 
eral city election, when the vacancy shall be filled for the remainder of the term. 

First election— Org-anizatioii—Terms.~4. At the city election occurring on the 
second Tuesday of October, 1899, five members of the board of school commissioners 
shall be elected to serve as herein provided. They shall assume office on the first day 
of January, 1900, and shall meet at the office of the present board of school commis- 
sioners of such city at twelve o'clock noon, ar^d shall proceed to organize. Within one 
week after the organization of said elected board they shall meet to divide themselves 
by lot, in such manner as they shall determine, into two classes, as follows : The first 
class, consisting of three members, shall hold office through the 31st day of December, 
1901. The second class, consisting of two members, shall hold office through the 31st 
day of December, 1903. Thereafter, regular elections of members of the board of school 
commissioners shall occur at the regular city elections, held on the second Tuesday of 
October of each alternate year. In the year 1901, and every fourth year thereafter, 
three members shall be elected. In the year 1903, and every fourth year thereafter, 
tvv^o members shall be elected. 

Animal organization— Treasurer of city treasurer of board— Duties.— 5. The board 
of school commissioners shall organize annually at their first regular meeting in January, 
by choosing one of their members president, another vice-president, and electing a secre- 
tary who shall not be one of their number, and who shall receive a salary, to be fixed bv 



§ 1544 [miscellaneous statutes and provisions. 924 

the sbhool commissioners, which shall not exceed fifteen hundred dollars per year. The 
treasurer of the city shall be treasurer of the board, and shall serve as such Vt'ithout 
any additional compensation. The treasurer shall make a monthly statement to the 
board of the amounts received and expended during the month, and the amount on 
hand to the credit of the board. He shall give bond to the approval of the board in 
such sum as it may determine, and with not fewer than two sureties or a surety com- 
pany. 

City comptroller is auditor of board— Duties. — 13. The city comptroller shall be 
the auditor of the board of school commissioners of such school city. He shall keep an 
accurate account of all taxes levied for school purposes, and of all moneys due to, re- 
ceived and disbursed by the board ; also of all assets and liabilities of, and all appro- 
priations made by the school board, and shall receive and preserve all vouchers for 
payments and disbursements made by the board. 

Issues warrants. — 14. The auditor of the board shall issue all w^arrants for the pay- 
ment of money from the school funds, but no warrant shall be issued for the payment 
of any claim until such claim has been allowed by the board and approved in writing 
by the business director ; but when the board has authorized the payment of money, 
notwithstanding his veto, the business director shall approve the same. The pay-roll, 
however, for assistants, principals and supervisors in the school work and teachers, 
shall be allowed by the board and approved by the superintendent of schools instead of 
by the director. 

May require proof of claim. — 15. Whenever the auditor of said board shall be 
called upon to issue any warrant, he shall have power to require evidence that the 
amount claimed is justly due and is in conformity with the law, and for that purpose he 
may sum.mon before him any officer, agent or employe of the board, or any other per- 
son, and examine him on oath or affirmation relative thereto, which oath or affirmation 
he may administer. 

Illeg-al warrants.— 16. If the auditor of said board shall draw a warrant for any 
claim contrary to law, he and his sureties shall be individuallj^ liable for the amount of 
the same. 

Money drawn only on appropriations. — 17. No money shall be drawn from the 
treasury except in pursuance of appropriations made by the board upon an aye and nay 
vote duly recorded, and whenever an appropriation is made by the board, the secretary 
shall forthwith give notice thereof to the auditor and treasurer. No appropriation 
shall be made for a longer period than to the end of the current year, ending June 30, 
and at the end of such year all the unexpended balances of all appropriations, except 
from the tuition fund, shall be covered into the special school fund as an addition 
thereto. 

Auditor's annual report.— 18. The auditor shall submit to the commissioners an- 
nually, and oftener if required by them, a report of the accounts of the board, verified 
by his oath, exhibiting the revenues, receipts, disbursements, assets and liabilities, the 
sources from which the revenues and funds are derived, and in what manner the same 
have been disbursed. He shall give bond for the faithful discharge of his duties in the 
sum of five thousand dollars (|5,000), with not fewer than two sureties, or a surety 
company, to the approval of the commissioners, which bond shall be filed with the 
'secretary. The auditor of the said board shall receive no compensation for his services 
as auditor, but the board shall provide for the appointment of such assistants for such 
auditor as it shall deem necessary and fix their compensation, which shall be paid 
monthly out of the school funds ; but such assistants shall be appointed by the auditor. 

Mayor— Appoints expert accountants.— 19. At the close of each year ending June 
30, the mayor of such city shall appoint one or more expert accountants, who shall ex- 
amine the books, accounts and vouchers of the director, the treasurer, and of all other 
departments of expenditure of said board, and of the librarian provided for herein, and 



925 



LIBRARIES. 



§ 1544 



shall make report thereof to the mayor and to the board of school commissioners of 
said city. All the officers and employes of said board shall produce and submit to such 
accountants for examination all books, papers, do'^uments, vouchers and accounts in their 
offices belonging to the same or thereto pertaining, and shall in every way assist said 
accountants in their work. In the report to be made by said accountants, they may 
make any recommendations they deem proper as to the business methods of such offi- 
cers and employes. A reasonable compensation for such services shall be paid by said 
board. 

Money paid to treasurer. — 20. All money payable to the board shall be paid to the 
treasurer, and his receipt for the same shall be filed with the auditor of said board, who 
shall issue his quietus therefor, which alone shall be sufficient evidence of such pay- 
ment. No person except the treasurer shall collect or receive any moneys payable to 
the board, and any payments made, except to such treasurer, and any receipt given 
therefor by any other person shall be void as against the board. 

Special tax — Separate account.. — 25. The board of school commissioners in any 
such city is hereby authorized and empowered to levy annually, in addition to other 
taxes authorized by law, a special tax of not exceeding five cents on each one hundred 
dollars of taxable property in the city, for the purchase of grounds and the erection and 
repair of school buildings. The proceeds of such tax shall be segregated from other 
funds of the board, and a separate account of the same shall be kept, and shall not be 
used for any other purpose than the purchase of grounds and the erection and repair of 
school buildings. The said board is also hereby authorized to levy annually, in addi- 
tion to all other taxes authorized by law, and as an addition to its special fund, eleven 
cents on each one hundred dollars of taxable property in said city : Provided, however, 
That any sum levied in any year by such board in pursuance of an act entitled "an act 
concerning the education of children," and approved March 8, 1897, shall, to the extent 
of such sum so levied, reduce the power to levy the said tax of eleven cents above 
mentioned : And, provided further, That the aggregate sums levied by such board for 
all purposes shall not in any one year exceed fifty cents upon each one hundred dollars 
of taxable property in such city. 

Cities that may hereafter come within the provisions of act.— 33. Whenever any 
city which has not [now] sufficient population to bring it within the purview of this 
act, shall, acccording to any United States census hereafter taken, have a population of 
more than one hundred thousand people, an election of the board of school commis- 
sioners shall be held at the next general city election following the year in which such 
census shall be taken. Such election to be held in accordance with the provisions of 
this act, and this act shall then in all respects apply to and govern said city from thence- 
forward. 

ARTICLE 12.— LIBRARIES. 



SEC. 






SEC. 


1545. 


How established. 




1558. 


1546. 


Chairman and clerk. 




1559. 


1547. 


Election of directors. 




1560. 


1548. 


Statement. 






1549. 


To be recorded. 




1561. 


1550. 


Powers. 




1562. 


1551. 


Banking forbidden. 




1563. 


1552. 


Directors annually elected. 


1564. 


1553. 


By-laws. 




1565. 


1554. 


Seal— Assessments- 


Officers. 


1566. 


1555. 


Quorum— Vacancies- 


-Term. 




1556. 


Donations. 




1567. 


1557. 


Stock. 




1568. 



Voting stock. 

Museum, 

Fines— Costs — Judgment without re- 
lief. 

Corporations may take stock. 

Cities may take stock. 

Stock as prizes. 

Dissolution — City to manage. 

Tax. 

Library by donations — Township 
library, transfer to. 

Library to revert to township. 

Library asBociations legalized. 



SEC. 




SEC. 


1569. 


Public libraries — Tax— Directors. 


1576. 


1570. 


Tax limited. 




1571. 


Tax levy by cities. 


1577. 


1572. 


Incorporation. 




1573. 


Instrument of association. 


1578. 


1574. 


Recording— Powers— Exemption 


1579. 




fronl taxation. 


1580. 


1575. 


Gallery of art— Reading room— Park . 


1581. 



§ 1545 MISCELLANEOUS STATUTES AND PROVISIONS. 926 



Public libraries— Free use of in cities 
of 19,700 to 20,000. 

Books and property of county li- 
hrsLTj. 

Care and maintenance. 

Property listed and labeled. 

Loan of library fund. 
1581. Property reclaimed. 

Libraries.— R. S. 1894, ch. 35 (§§4963-4999); Acts 1899, pp. 67, 184, 
See chapter note preceding § 1308, ante. 

[1 R. S. 1852, p. 355. In force May 6, 1853.] 

1545. How established. — 1. The inhabitants of any city, town, 
village, or neighborhood, in this state, or any part of them, whenever 
they have subscribed the sum of fifty dollars, or upwards, toward the 
establishment of a public library, may assemble themselves for the 
purpose of holding an election for directors. R. S. 1894, § 4972. 

1546. Cliairman and clerk. — 2. If two-thirds of the subscribers 
are present, they may proceed to choose, by voice, a chairman, who 
shall preside at that meeting, and a clerk, who shall keep a record of 
the same. R. S. 1894, § 4973. 

1547. Election of directors. — 3. After a chairman and clerk are 
chosen, the shareholders may proceed to choose, by ballot, seven 
directors, and to agree upon a name by which their library shall be 
known. The directors shall appoint one of their number to be presi- 
dent at their meetings, who shall have no other than a casting vote. 
R. S. 1894, § 4974. 

1548. Stateiwent, — 4. A true statement of the proceedings of such 
meeting, including the amount subscribed and the number of sub- 
scribers present at their meeting, shall be sworn or affirmed to before 
some justice of the peace of the county, by the chairman or the clerk 
provided for by the second section of this act, and filed in the 
recorder's office; and it shall be the duty of such justice to certify 
on such statement that it was sworn or affirmed to before him. R. S. 
1894, § 4975. 

1549. To be recorded.- — 5. The recorder of the county shall record 
the said statement in his book of record, when required. R. S, 1894, 
§ 4976. 

1550. Powers. — 6. After such statement shall be duly recorded, 
the president and directors, and their successors forever, shall be a 
body corporate and politic, to be known by such name as is registered 
in the recorder's office. They shall be capable, in law and equity, to 
sue and be sued, plead and be impleaded, answer and be answered 
unto, defend and be defended, in any court or courts, or before any 
judge or judges, justice or justices, person or persons whatsoever, in 
all manner of suits, actions, plaints, pleas, causes, and demands what- 
ever, in as effectual a manner as any other person or persons, body or 
bodies corporate or politic, may or can do. R. S. 1894, § 4977. 



927 LIBRARIES. § 1551 

1551. Banking forbidden. — 7. Nothing contained in this act shall 
be so construed as to authorize any library company incorporated in 
this state to issue notes or bills of credit payable to any person or per- 
sons or his or their order, or to bearer; nor to deal in any kind of 
bills of exchange, notes or due bills whatever. R. S. 1894, § 4978. 

1552. Directors annualiy elected, — 8. Except the first election of 
directors, the annual election forever thereafter shall be held on the 
first Monday in January; but if any annual election should be omitted, 
the directors shall remain in power until the next annual election, 
and until successors shall be chosen. R. S. 1894, § 4979. 

1553. By-laws. — 9. Such library or libraries shall be governed 
and regulated by such by-laws as may from time to time be made by 
the president and directors of the same, not inconsistent with the 
constitution and laws of this state, who shall have power to alter, 
amend, abolish and renev/ any such by-law or by-laws at pleasure. 
R. S. 1894, § 4980. 

1554. Seal — Assessments — Officers. — 10. The president and direct- 
ors shall have power to make a common seal, and the same to alter, 
break, change or renew at pleasure. They shall have power to levy a 
tax on the shareholders, provided such tax do not exceed one dollar 
on each share in any one year. Nothing, however, in this act shall 
be so construed as to prevent a majority of two-thirds of the share- 
holders, attending at their annual meeting, from increasing such tax 
to any sum not exceeding five dollars on each share in any one year. 
They shall have power to appoint a treasurer and librarian, and the 
same to remove at pleasure. R. S. 1894, § 4981. 

1555. Quorum — Yacancies— Term, — 11. A majority of the direct- 
ors shall be necessary to form a quorum. They shall have power to 
fill vacancies that may happen in their own body, and the director or 
directors by them elected shall serve until the next annual election 
thereafter, and until others are elected in their stead. R. S. 1894, 
§ 4982. 

1556. Donations, — 12. They shall have power to receive, by 
donation, any books, moneys, papers, lands, or any other thing or 
things; and such donation, or the income or the interest thereof, shall 
be applied to no other purpose than to the true interest and objects of 
the library on which it was bestowed, according to the true intent and 
meaning of this act. R. S. 1894, § 4983. 

[Acts 1873, p. 176. In force March 8, 1873.] 

1557. stock. — 2. All stock in such library association shall be 
deemed personal estate, and shall be transferred in the manner and 
under the conditions prescribed by the by-laws of the same; and such 
stock shall be exempt from the levy of any state, county, township, 
or municipal tax, and shall not be liable to execution for the debts of 
the owners of the same. R. S. 1894, § 4993. 

1558. Voting stock, — 3. At all meetings of shareholders, each 
shareholder shall be entitled to one vote for each share of stock held 



§ 1559 MISCELLANEOUS STATUTES AND PROVISIONS. 928 

by him; and provision shall be made by the by-laws by which absent 
shareholders may vote by proxy. R. S. 1894, § 4994. 

1559. Miisenm. — 4. Library associations may make such provis- 
ions as the board of directors may deem proper, for maintaining, in 
addition to the librarv, a reading-room and museum. R. S. 1894, 
§ 4995. 

1560. Fines — Costs — Judgment without relief. — 5. All fines and 
forfeitures accruing from the violation of the by-laws and regulations 
made by the directors shall be recoverable, with costs, in an action 
before any court of competent jurisdiction, and judgments for the same 
shall be collected without relief from valuation or appraisement laws. 
R. S. 1894, § 4996. 

1561. Corporations may take stock, — 6. Any mining or manufac- 
turing company or other voluntary association within the state shall 
have the power to subscribe to and purchase stock in such library as- 
sociations, and the provisions of all laws inconsistent with this section 
are hereby repealed. R. S. 1894, § 4997. 

1562. Cities may take stock.— 7. Any city incorporated under the 
laws of this state may, by the vote of two-thirds of the members of the 
common council thereof, subscribe to the stock of any public library 
association organized within its limits, and for the payment of such 
shares of stock, and the assessments on the same, may, from time to 
time, as the common council may think proper, annually levy and 
collect not more than two mills on the dollar upon the taxable prop- 
erty within the limits of the city, which shall be paid into the city 
treasury, and applied to the payment of such stock and assessments 
made thereon. R. S. 1894, § 4998. 

1563. Stock as prizes. — 8. The common council of such city shall 
have the power, in. their discretion, to cause the distribution and 
transfer of shares of stock held by the city, as prizes to the children of 
the public schools in the city for good behavior and scholarship. R. S. 
1894, § 4984. 

1564. Dissolution — City to manage. — 9. Upon the dissolution or 
forfeiture of the franchises of such library association in which any 
city may have purchased stock, and is, at the time of such dissolution 
or forfeiture, the holder of one-third of the shares of the whole stock, 
the property of such association shall become the property of the city, 
for the free use and enjoyment of the inhabitants of such city, under 
regulations to be prescribed by the common council; and the common 
council shall thereafter control such library, and shall have power to 
increase the same, and levy and apply the tax provided for in section 
7 of this act, to the increase and expenses of such library. R. S. 
1894, § 4985. 

[Acts 1879 S., p. 171. In force March 14, 1879.] 

1565. Tax. — 1. That in any township in which there has been, 
or may hereafter be established, by private donations, a library of the 
value of one thousand dollars or more, for the use and benefit of all 



929 LIBRARIES. § 1566 

the inhabitants thereof, the township trustee of such township shall 
annually levy and collect not more than one cent on the one hundred 
dollars upon the taxable property within the limits of such township, 
which shall be paid to the trustees of such library, and be applied by 
them to the purchase of books for said library, and may, with the 
consent of the board of commissioners of the county, when it shall 
become necessary to erect or enlarge a library building, annually, for 
such period as may be necessary, levy and collect not more than five 
cents on the one hundred dollars upon the taxable property of said 
township, for not more than three years successively, which shall be 
expended by such trustees in the erection or enlargement of a library 
building. [As amended, Acts 1885, p. 9. In force February 18, 
1885.] R. S. 1894, § 4986. 

[Acts 1899, p. 228. In force March 2, 1899.] 

1566. Library by donations — Township library, transfer to. — 1. 

That in any township in this state in which there has been or may 
hereafter be established by private donations a library of the value of 
one thousand dollars, or more, for the use and benefit of all the in- 
habitants thereof, the board of commissioners of the county in which 
such township is situated, may, upon due proof thereof, by proper or- 
der entered upon its records, abolish the office of township librarian 
and require and order that the township library in the hands of the 
township trustee, or the librarian thereof (including all the books, 
papers, records, furniture and paraphernalia pertaining thereto), be 
turned over and transferred to the trustees or other managing officers 
of such library established as aforesaid. 

1567. Library to revert to townshiip. — 2. That in the event said 
library association so established or to be established, shall from any 
cause cease to exist, or to perform its duties to the inhabitants of such 
township, then all its property of every kind shall be turned over to 
and become the property of such township. 

1568. Library associations legalized. — 3. All library associations 
of this state which purport to have been organized and established 
pursuant to the provisions of the laws of this state, for the use and 
benefit of all the inhabitants of any township in this state, and 
to which private donations to the amount of one thousand dollars, or 
more, have been subscribed, are hereby legalized, made valid and de- 
clared to be legal library corporations within the purview of this act, 
and all records, proceedings, subscriptions to and acts of the said 
library associations are hereby ratified, legalized and made valid. 

[Acts 1883, p. 200. In force March 8, 1883.] 

1569. Public libraries — Tax^ — Directors. — 1. That whenever any 
library, or library and reading-room combined, established under an 
act entitled "an act to establish public libraries," approved Feb- 
ruary 16, 1852, and the acts supplementary thereto and amenda- 

ClT. AND To.— 59 



§ 1569 MISCELLANEOUS STATUTES AND PROVISIONS. 930 

tory thereof, shall be located within the corporate limits of any incor- 
porated town of this state, the president and board of directors of 
such library may file a written request and agreement, duly signed 
by them or a majority of them, with the board of trustees of such town, 
agreeing therein to keep and maintain such library, or library and 
reading-room, open and free to the use and benefit of all the inhabi- 
tants of such town, and requesting the board of trustees of such town 
to levy a tax upon the taxable property of such town, to be applied in 
the purchase of reading matter for such library. If, in the judgment 
of the board of trustees of such town, the books and other reading 
matter of such library is worth, at the time of filing such agreement 
and request, the sum of seven hundred and fifty dollars or more, they 
may annually levy a tax upon all the taxable property of said town of 
not less than one-fourth nor more than three-fourths of one mill upon 
the dollar, to be collected as other taxes of such town are collected. 
Such tax, when collected, shall be paid over to the president and di- 
rectors of such library, and shall be by them expended for the pur- 
pose of purchasing reading, matter for such library, and for no other 
purpose; and they shall keep such tax separate from all other funds, 
and, in a proper book kept by them, shall show the amount of tax re- 
ceived, to whom and when paid out, the amount, and upon what pur- 
chase. From the time of the first receipt of any tax under this 
act, and so long thereafter as the trustees of such town shall an- 
nually levy and collect, or cause to be collected and paid over a tax 
under the provisions of this act for the purpose aforesaid, it shall be 
the duty of the president and directors of such library to keep the 
same open and free to the use and benefit of all the inhabitants of such 
town, subject only to such reasonable and proper restrictions as they, 
the president and board of directors, may impose for the preservation 
and usefulness of the same. But if the trustees of such town shall 
during any year fail or refuse to levy and collect a tax for the purpose 
aforesaid, under the provisions of this act, then the president and 
directors of such library shall not be longer required to keep the same 
open for the use and benefit of the inhabitants of such town, and the 
books purchased with the proceeds of such tax shall be the property 
of such library association, the same as if derived from any other 
source, after the receipt of any tax under the provisions of this act, 
and so long as the trustees of any such tovv^ shall annually levy and 
collect a tax or cause the same to be collected and paid over for the 
purpose aforesaid. If the president and board of directors of any such 
library shall fail or refuse to keep the same open and free to the use 
of all the inhabitants of such town, subject to the restrictions afore- 
said, then all of the property of such library association, real estate 
excepted, shall become the property of such town, and be subject to 
the control and directions of the trustees thereof, and they may then 
levy and collect the tax provided for in this act, to be expended as 
well in keeping and maintaining such library as supplying reading 
matter therefor. R. S. 1894, § 4987. 



931 LIBRARIES. § 1570 

1570. Tax limited. — 2. The trustees of any town shall have no 
authority by virtue of this act to levy and collect a tax for more than 
one library association in any one year. R. S. 1894, § 4988. 

[Acts 1885, p. 120. In force April 2, 1885.] 

1571. Tax-levy by cities. — 1. That whenever the board of directors 
of a library heretofore situate within the limits of any incorporated 
town may have filed the agreement and request with the board of 
trustees of said town, provided for in an act entitled ^'An act supple- 
mentary to an act entitled an act to establish public libraries," ap- 
proved February 16, 1852, approved March 8, 1883, and the board of 
trustees of such town may have levied a tax for the support of such 
library in pursuance of such request and agreement and in accordance 
w^ith said act, and such town may afterward have become incorporated 
as a city, the common council of such city shall have all the powers 
to levy tax, and do all other things granted by said act above named 
to trustees of towns, and all the provisions of said act applicable to 
such library and its relations to the town before its incorporation as a 
city shall, after such incorporation, be applicable to such library and 
its relations to such city. R. S. 1894, § 4999. 

[Acts 1881 S., p. 588. In force April 7, 1881.] 

1572. Incorporation. — 1. Whenever any number of persons, not 
less than seven, shall desire to associate themselves together for the 
purpose of establishing and maintaining a public library in any city 
or county in this state, for the general benefit and advantage of all 
the inhabitants of such city or county, it shall be lawful for such per- 
sons to becom^e incorporated under this act in the manner hereinafter 
provided. R. S. 1894, § 4989. 

1573. Instrument of association, — 2. Whenever any persons shall 
desire to become incorporated under this act, for the purposes afore- 
said, they shall, by an instrument in writing, set forth the objects of 
the association, the corporate name to be adopted, the names and 
places of residence of the incorporators, and a description of the cor- 
porate seal; and they shall also, in said instrument, provide the man- 
ner in which, in case of the death, resignation or removal for any 
cause of any of the original incorporators, their successors shall be 
selected, so that the number of the members of such incorporation 
shall never be less than the original number. They shall also pro- 
vide, in said instrument, what officers shall be elected by such corpo- 
ration, and the time and manner of their election; and shall also 
provide therein, generally, in what manner the business of said cor- 
poration shall be conducted. Which instrument shall be signed by 
all the proposed incorporators, and filed in the office of the recorder of 
the county in which such library or reading-room is proposed to be 
established. R. S. 1894, § 4990. 

1574. Recording — Powers — Exemption from taxation. — 3. Upon 
the filing of such instrument in the proper recorder's office, it shall 



§ 1575 MISCELLANEOUS STATUTES AND PROVISIONS.' 932 

be the duty of the recorder to record the same in the miscellaneous 
records of such county; and from the time of the recording thereof, 
as aforesaid, the said association and their successors shall be deemed 
and held a corporation, and shall have, possess and enjoy all the 
rights, powers, and privileges given to corporations by common law; 
to sue and be sued; to borrow money and secure the payment of the 
same by notes and mortgages, bonds, or deeds of trust, upon the per- 
son or real estate of such association; to purchase, rent, lease, hold, 
sell, and convey real estate for the benefit of such corporation; and to 
erect and maintain suitable buildings for the purposes aforesaid and 
for other objects properly connected therewith. Such corporation 
shall, also, have the right and power to receive and accept donations, 
either of money or real estate, either by gift or devise, and to hold, 
use, enjoy, mortgage, sell, and convey the same, for the benefit of 
such corporation, in the manner provided in the deed of gift or de- 
vise by which the same was received. And the real estate and per- 
sonal property of any such corporation which shall have established 
a public library for the purposes aforesaid, and shall have put the 
same into operation, shall be exempt from taxation for state, county, 
and all municipal purposes, and shall remain exempt, as aforesaid, 
so long as the same is used exclusively for the general benefit of the 
inhabitants of the city or count}^ in which such library may be lo- 
cated. R. S. 1894, § 4991. 

1575. Oallery of art — Eeading-room— Park. — 4. Whenever any 
such corporation shall be established as in this act provided, it shall 
be lawful, and such corporation shall have the power, to establish and 
maintain, in connection with its library, a gallery of art and public 
reading-rooms, and may also maintain, either in connection with its 
library building or separate therefrom, a public park. R. S. 1894, 
§ 4992. 

[Acts 1899, p. 67. In force February 17, 1899.] 

1576. Public libraries— Free use of in cities of 19,700 to 20,000.— 

1. That wherever there is established in a city or town being the 
county seat of a county having a population according to the census 
of 1890, exceeding nineteen thousand seven hundred, and less than 
twenty thousand, in w^hich there is or may be established a public 
library, containing for the use of the public more than three thou- 
sand volumes, the directors or trustees thereof propose in writing to 
the common council of the city, or board of trustees of the town, to 
maintain such library for the free use of all the inhabitants of said 
town or city and to keep the same open to the public for not less than 
one-half of each day in the year, except legal holidays, it shall be the 
duty of said common council to levy, collect and pay over to the 
directors or trustees of said library for its support and maintenance 
an annual tax of not less than four-tenths of a mill nor more than one 
mill on the dollar : Provided, That upon the dissolution of said public 
library or the association operating it, the property of such library or 
association shall revert to said city or town for the use of the inhabi- 



933 LIBRARIES. § 1577 

tants of the city or town under such rules and regulations as may be 
prescribed by the common council or board of trustees. 

1577. Books aud property of county library, — 2. That, wherever 
there is established at the county seat of any county having a popula- 
tion of not less than nineteen thousand seven hundred, and not ex- 
ceeding twenty thousand, according to the census of 1890, a public 
library which is open upon equal terms to all the inhabitants of such 
county, the trustees of the county library of such library of such 
county shall deposit with said public library all of the books, furni- 
ture and property of every kind belonging to such county library, and 
be used together with the books of such public library by all the in- 
habitants of such county upon equal terms. 

1578. Care and maintenance. — -3. The board of county commis- 
sioners shall appropriate and pay to the trustees of said library annu- 
ally for the care and maintenance of said library, a sum not less than 
one hundred dollars. 

1579. Property listed and labeled.-— 4. That all papers, books and 
property of the county library so deposited, and all papers, books and 
property which may hereafter be purchased with funds of said county 
library shall be so listed and labeled that their identity may be pre- 
served. 

1580. Loan of library fund. — 5. That the trustees of such county 
library shall loan the principal sum of the county library fund upon the 
same terms and conditions and under the same restrictions as school 
funds are loaned, and at the rate of seven per cent, per annum paya- 
ble in advance, and the same laws as to collection of principal and 
interest shall govern, as in the case of the school fund. The said 
trustees of the county library shall collect such interest as it may be- 
come due and shall pay over the same to the directors of said public 
library, who shall expend it for the proper care and renewal of the 
books and property of the county library. 

1581. Property reclaimed. — 6. That if said public library shall 
cease to exist, or shall cease to furnish equal facilities to all the in- 
habitants of the county, it shall be the duty of the trustees of the 
county library to reclaim the books and property. 



APPENDIX 



SPECIAL AND TEMPORARY ACTS 

List of special and temporary acts relating to cities and towns passed at 
the session of 188 1, and subsequent sessions. 



ACTS 1881. 

PAGfE. 

Argos, town of, incorporation and acts of, legalized 707 

Bedford, proceedings of town board of trustees of, legalized 710 

Edinburg, acts of town trustees of, legalized 704 

Evansville, act amending city charter of 22 

Geneva, incorporation of town of, and acts of, legalized. 706 

Indianapolis, city of, act relating to construction of a sewer from the deaf and 

dumb institute 106 

Kirlin, acts of town of, legalized 711 

Lagro, incorporation of town of and acts of, legalized 710 

Milton, town of, proceedings of school trustees of, legalized 567 

Monroeville, proceedings of town trustees of, legalized 568 

New Castle, incorporation of town of, legalized 47 

Spiceland, election of town trustees in, legalized 702 

Towns, election of officers in, legalized 58 

ACTS 1883. 

Angola, incorporation of town of, and acts of, legalized 100 

Burnettsville, incorporation of town of, and acts of, legalized 138 

Cadiz, incorporation of town of, and acts of, legalized 31 

Carbon, incorporation of town of, and acts of, legalized 112 

Churubusco, incorporation of town of, and acts of, legalized. 82 

Clarksville, act amending charter of, repealed, and providing for incorporating 

cities and towns on outlots of 74 

Darlington, incorporation of town of, and acts of, legalized 138 

Jasper, election of town officers of, and acts of, legalized 80 

Michigan City, act relating to building sewer from state prison 39 

Oakland, incorporation of town of, and acts of, legalized Ill 

Roachdale, incorporation of town of, and acts of, legalized 145 

Silver Lake, incorporation of town of, and acts of, legalized 34 

Sullivan, election of town trustees and acts of, legalized 11 

Syracuse, incorporation of town of, and acts of, legalized 12 

Waynetown, election of officers and acts of, legalized 81 

Westfield, acts of town of, legalized 11 

Winchester, taxes assessed by town trustees of, legalized 19 

ACTS 1885. 

Alamo, incorporation of town of, and acts of, legalized 13 

Ambia, incorporation of town of, and acts of, legalized 8 

Bourbon, incorporation of town of, and acts of, legalized 41 

Brownstown, acts of trustees of town of, legalized 99 

Cannelton, incorporation of town of, and acts of, legalized 7 

(935) 



986 APPENDIX. 

PAGE. 

Cities, acts of in sale of lands in certain cases legalized 108 

Clinton, act concerning distribution of moneys in town treasury of 191 

Deeds made by cities in certain cases legalized 108 

Indianapolis, city of, appropriation to , 155 

Laconia, incorporation of town of, and acts of, legalized 175 

Lawrenceburg, city of, appraisement of property and assessment of taxes legalized . 113 

Ligonier, election of town trustees of, legalized 112 

New Haven, incorporation of tow^n of, and acts of, legalized 12 

Owensville, incorporation of town of, and acts of, legalized 150 

Eockport, election of town trustees of, and acts of, legalized 152 

Vernon, act incorporating town of, amended 73 

ACTS 1887. 

Boswell, incorporation of tov/n of, and acts of, legalized 5 

Bunker Hill, incorporation of town of, and acts of, legalized 28 

Dunkirk, election of town trustees of, and acts of, legalized 27 

Huntingburg, acts of tow^n trustees of, legalized 9 

Middlebury, election of trustees of town of, and acts of, legalized 7 

Orleans, incorporation of town of, and acts of, legalized 28 

Pierceton, incorporation of town of, and acts of, legalized 37 

Eockport, election of town officers of, and acts of, legalized 60 

Tipton, city of, incorporation of, and acts of, legalized 12 

ACTS 1889. 

Boonville, election of town trustees of, and acts of, legalized 35 

Carmel, acts of town trustees of, legalized , . 374 

Center Point, incorporation of town of, and acts of, legalized 344 

Donations and gifts by cities and towns to certain corporations legalized 281 

Ellettsville, organization of town and proceedings of, legalized 303 

Evansville, charter of, amended 343, 440 

Harrodsburg, plat of, legalized 274 

Huntingburgh, election of town trustees of, and acts of, legalized 134 

Huntsville, incorporation of town of, and acts of, legalized 347 

Jonesville, election of trustees of tow^n of, and acts of, legalized 220 

Michigan City, act legalizing by-laws, resolutions and ordinances of 295 

New Lisbon, acts of town board of, and election of school trustees and acts of, 

legalized 67 

Posey ville, incorporation of town of, and acts of, legalized 83 

Eedkey, incorporation of town of, and acts of, legalized 7 

Eensselaer, plat and survey of town of, legalized 37 

Eoachdale, annexation of additions to and levy of taxes legalized 219 

Eusselville, incorporation of town of, and acts of, legalized 347 

Sheridan, incorporation of town of, and acts of, legalized 6 

Warren, incorporation of town of, and acts of, legalized 287 

ACTS 1891. 

Carpenters ville, incorporation of town of, and acts of, legalized 31 

Clifford, incorporation of town of, and acts of, legalized 26 

Fisher's Station, acts of town trustees as to platting and laying out town legalized. 50 
Fowler, acts of trustees and other town officers of, and ordinances, surveys, plats 

and assessment and collection of taxes legalized 9 

Greenville, incorporation of town of, and acts of, legalized 27 

Hammond, city of, incorporation of, and acts of, legalized 5 

Knightstown, acts of town trustees in levy and collection of taxes legalized 8 

Macy, incorporation of town of, and acts of, legalized 338 

Michigantown, acts of town trustees of, legalized 23 

New Maysville, incorporation of town of, and acts of, legalized 334 

Osgood, incorporation of town of, and acts of, legalized , 25 

Patoka, incorporation of town of, and acts of, legalized 4 

Pine Village, incorporation of town of, and acts of, legalized 11 

Saltilloville, incorporation of town of, and acts of, legalized 330 

Scottsburgh, incorporation of town of, and acts of, legalized 303 



APPENDIX. 937 

PAGE. 

Troy, acts of town trustees as to plat and annexation of territory legalized 31 

Westport, incorporation of town of, and acts di, legalized 12 

ACTS 1893. 

Ashley, incorporation of town of, and acts of, legalized 48 

Carlisle, incorporation of town of, and acts of, legalized 45 

Cayuga, incorporation of town of, and acts of, legalized 135 

Centerville, acts of town trustees in issuing bonds for school purposes legalized. . . 14 

Chrisney, incorporation of town of, and acts of, legalized 13 

Cities, act authorizing appropriation for soldiers' encampment at Indianapolis 54 

Cochran, incorporation of town of, and acts of, legalized 139 

Crothersville, incorporation of town of, and acts of, legalized 181 

Dale, incorporation of town of, and acts of, legalized 145 

Dana, incorporation of town of, and acts of, legalized 139 

Eugene, incorporation of town of, and acts of, legalized 28 

Fort Branch, incorporation of town of, and acts of, legalized 8 

Gas City, incorporation of town of, and acts of, legalized 20 

Greeutown, incorporation of town of, and acts of, legalized 25 

Hardinsburg, incorporation of town of, and acts of, legalized 42 

Hazelton, incorporation of town of, and acts of, legalized 23 

Hobart, incorporation of town of, and acts of, legalized 12 

Hudson, incorporation of town of, and acts of, legalized 141 

Lagrange, incorporation of town of, and acts of, legalized 11 

Linton, incorporation of town of, and acts of, legalized 6 

Markle, incorporation of town of, and acts of, legalized 33 

New Amsterdam, incorporation of town of, and acts of, legalized 145 

Palmyra, incorporation of town of, and acts of, legalized , 6 

Petersburg, incorporation of town of, and acts of, legalized 53 

Sellersburg, incorporation of town of, and acts of, legalized 47 

Tell City, incorporation of town of, and acts of, legalized 48 

West Shoals, incorporation of town of, and acts of, legalized 135 

Whiteland, incorporation of town of, and acts of, legalized 153 

Winslow, incorporation of town of, and acts of, legalized 54 

ACTS 1895. 

Albany, incorporation of, legalized 10 

Alton, incorporation of, legalized 17 

Broad Ripple, incorporation of, legalized 58 

Brook, incorporation of, legalized 257 

Crandall, incorporation of, legalized 60 

Eaton, incorporation of, legalized 63 

Grandview, incorporation of, legalized 20 

Greenville, election of officers legalized 58 

Indianapolis, ordinances of, legalized 303 

Jacksonville, name of, changed 253 

Leavenworth, incorporation of, legalized 371 

Lebanon, acts of city as to sewer legalized 19 

Middleton, incorporation of, legalized 98 

Ossian, incorporation of, legalized 95 

Shoals, school bonds legalized 11 

Vernon, act incorporating, amended 138 

Wallace, name of Jacksonville changed to 253 

Warren, acts of town of, legalized 238 

Wheatfield, acts of town of, legalized 7 

ACTS 1897. 

Andrews, incorporation of, legalized 37 

Cynthiana, incorporation of, legalized 191 

Flora, incorporation of, legalized 333 

Greenville, incorporation of, legalized 19 

Hobart, acts of town of, legalized 57 

Irvington, incorporation of, legalized 18 



938 APPENDIX. 

PAGE. 

Jeffersonville, bonds of, legalized 108 

Keystone, incorporation of, legalized 17 

Lowell, incorporation of, legalized 6 

Mauckport, acts of, legalized 33 

Poneta, incorporation of, legalized 33 

Roann, incorporation of, legalized 15 

Shoals, survey of town of, legalized 235 

Walcott, incorporation of, legalized 317 

Waterloo, acts of town of, legalized 18 

Whiting, incorporation of, legalized 7 

ACTS 1899. 

Castleton, incorporation of, and acts of, legalized 124 

Elwood, incorporation of, and acts of, legalized 229 

Georgetown, incorporation of, and acts of, legalized 90 

Greensfork, change of name 12 

Indianapolis, departments, boards and officers, acts of, and bonds, warrants, etc., 

legalized 449 

Judson, incorporation of, and acts of, legalized 222 

Kennard, incorporation of, and acts of, legalized , 375 

Kewanna, tax levy legalized ; . . , 535 

Markle, acts of trustees of, legalized 125 

Montpelier, acts in relation to sewer and assessments, and bonds therefor, legalized. 21 

Monterey, incorporation of, and acts of, legalized 572 

New Richmond, incorporation of, and acts of, legalized 6 

Normal City, incorporation of, and acts of, legalized 90 

St. Joe, incorporation of, legalized , 20 

Tennyson, incorporation of, and acts of, legalized 188 

Wakarusa, incorporation of, and acts of, legalized 54 

Washington, change of name of 12 

Warren, acts of trustees and officers of, legalized 130 

Waynetown, election of trustees and other officers of, and acts of, legalized 134 



INDEX. 



[References are to Pages.'} 



ABANDONMENT, 

of sewer plan, effect, 
vacation of street by, 
of easement, effect, 

ABANDONMENT OF CANAL, 

effect of, 

ABANDONMENT OF OFFICE, 
by removal, 

See Removal of Officers. 

ABATEMENT OF NUISANCES, 
power in reference to, 
evidence in actions for, 

See Nuisances. 

ABUTTING LANDS, 

contractor trespassing upon, 
liability to assessment, 

ABUTTING OWNER, 

right of in street, 

rights where grade of street changed, 
consenting to location of market- 
house, 
paying for collateral sewers, 
liability where sidewalk defective, 
action by city against to recover judg- 
ment, 
consenting to change of street grade, 
title in, 

right to dig trench in alley, 
enjoining construction of railroad, 
special interest in street, 
recovering damages on account of 

railroad, 
what must show to recover damages, 
answer to complaint of, 
damaged by change of grade, 
right to surplus earth, 
power to levy assessment against, 
right on vacation of street, 
objecting to vacation of street, 
petitioning for change of street, 
duty of as to keeping street in repair, 
assessing cost of improvement 

against, 
paying cost of sprinkling and sweep- 
ing, 
assessing for costs of lamp posts. 



155 
298 
813 



859 
43 



144 

247 



162 
416 



30 



166 
186 
242 

243 

257 
259 
260 
264 
264 

265 
265 
265 
266 
279 
282 
297 
313 
315 
384 

415 

434 
436 



ABUTTING OWNER— Continued. 

assessing for sewers, 
asking to change location of street, 
paying for local sewers, 647, 

compelling him to plant shade trees, 
petitioning for street improvement, 
allowance for improvement already 

made, 
paying cost of sidewalk, 
paying for cleaning streets, 
building sidewalk or street improve- 
ment, 788, 
allowing for improvement made by, 
use of streets as against, 
right in street, 

assessing for repairs to streets, 
damages to from obstructions, 
liability of for excavations, 
liability of town for acts of, 
when liable over to city for damages, 
consenting to vacation, 
petitioning for highway, 
street railway tracks not an addi- 
tional burden, 

ACCEPTANCE, 
of amendment to ordinance, 
of dedication, 

ACCEPTANCE OF IMPROVEMENT, 



580 
639 
700 
671 
706 

715 
730 
734 

790 
793 
797 
798 
798 
801 
801 
802 
805 
815 
827 

839 



11 

813 



effect of, 

ACCEPTANCE OF ORDINANCE, 

effect of, 

parol evidence to prove. 



419 



11 

841 



ACCEPTANCE OF WORK, 

effect of, 

ACCIDENTS, 
city not insurer against, 



285, 729 



ACCOUNTS, 
duty of city clerk to keep, 
park commissioners keeping, 
comptroller prescribing form for, 
comptroller auditing city's, 
duty of comptroller to audit, 
keeping of firemen's pension fund. 
See Comptroller. 



231 



85 
357 

488 
558 
628 
897 



(939) 



940 



INDEX. 



\_Beferences are to Pages."] 



ACCOUNT OF MONEYS, 
duty of city treasurer to keep, 

ACKNOWLEDGMENT, 
to plat, 



ACQUIESCENCE, 
in annexation proceedings, 

See Estoppel ; Laches. 



ACTING MAYOR, 
comptroller as, 

See Mayor. 



518 



814 



318 



551, 618 



ACTIONS, 

process in those against railroads, 78 

for penalties, 78 

statute of limitations, 120 
board of park commissioneTS may 

bring, 448 

how reorganization of city affects, 532 

on ordinances, 554 

process in, 623 

how consolidation affects, 678 

to enforce assessments, 734 

on lighting contract, 738 

on debt for light, 771 

for violation of ordinance, 781 

to collect assessments, 794 

to recover penalty from railroad, 830 

school corporation maintaining, 917 
See Suits. 



ACTUAL NOTICE, 
of defects in street, 233, 800 

See Constructive Notice ; Notice. 

ADDITIONAL BURDEN, 

power to impose on street car com- 
panies, 12 
what is and what is not, 263 
street railroad is not, 263, 853 
street railway tracks are not, 839 



ADDITIONAL FIREMEN, 

appointment of. 



439 



ADDITIONAL PATROLMEN, 

power to appoint, 342, 347, 439, 651 



ADDITIONAL TRACKS, 

laying in street, 
right to lay in street, 

ADDITIONAL WORK, 

bidder performing, 

ADDITIONS, 

to cities and towns, 
plats of legalized, 



263 
264 



277 



682 
683 



ADDITIONS— Continued, 
legalizing plats of, 683 

how vacated, 815 

See Annexation. 

ADDITIONS TO CITY, 
commissioners approving plat of, 368 



ADDITIONS TO TOWN, 
collateral attack on, 
recording plat of, 

ADJACENT STREETS, 

lots below, 

ADJOINING COUNTY, 
?.r»-nexing territory in, 

ADJOURNMENTS, 

by city commissioners. 



786 
810 



161 

678 
301 



ADJUDICATION OF COUNCIL, 
collateral attack on, 709 

ADMINISTRATIVE AUTHORITY, 

where vested, 550, 618 

ADMINISTRATIVE DUTIES, 

council not to perform, 544, 611 

ADMINISTRATIVE FUNCTIONS, 

council can not exercise, 476 

ADMINISTRATIVE POWERS, 

where vested, 483 

ADMINISTRATORS, 

taxation, 206 

ADOPTION, 
of city charter, 63 

ADOPTION OF PLAN, 
for street improvement, 276 

ADVANCE PAYMENT, 
for improvement of street, 285 

ADVANCEMENTS, 
to pay educational aid, 920 

ADVERTISEMENTS, 

power to regulate display of, 380 

prohibiting use of streets for, 472 

regulating use of streets for, 540, 607 

ADVERTISING FOR PROPOSALS, 

for electric light plant, 772 

See Bids. 

AFFIDAVIT, 
denying publication of ordinance, 

effect, 78 

as condition precedent to loan, 170 



INDEX. 



941 



\_Beferences are toFages.'] 



AFFIDAVIT— Continued. 
contractor making for precept, 289 
humane inspector filing, 355 
of contractor, to assessment roll, 418 
that contractor has performed work, 572 
requiring bidders to file, 635 
by contractor that assessment un- 
paid, 726 
to census, 748 



AFFIRMATIONS, 

town clerk administering, 
See Oaths. 



675 



AGENT, 

requiring railroad to pay license tax, 5 

sale of liquor by, 131 

AGRICULTURAL LANDS, 

assessing for street improvement, 282 

taxing those in city, 687 

AID, 

to roads, bridges, etc., 195 

to private corporations, 196 

to railroads, 196 
to railroads, hydraulic companies, 

etc., 200 
to roads in other states, 201 
bv border counties, cities and town- 
ships, 201 
payment of, 202 
levying tax to pay, 209 



AID BONDS, 
as commercial paper, 



198 



AID TO EDUCATIONAL INSTITU- 
TIONS, 

petition for, 918 

appropriating money for, 919 

election for, 919 

notice of election, 919 
election to conform to general law, 919 

form of ballot, 919 

certificate of vote, 920 

board of canvassers, 920 

tax levy, 920 

advancements, 920 

city may take stock, 921 

pay of election officers, 921 

forfeiture of rights, 921 

jurisdiction of circuit court, 921 

tax-payers released, 921 

ALDERMEN, 

number and selection of, 72 

ALLEGATIONS, 

proof to conform to, 267 

ALLEYS, 

power of common council over, 216 

power over, 226 



ALLEYS — Continued. 

obstruction of, 260 

authority to vacate, 312 
power of board of public works to 

control, 406 

sprinkling and sweeping, 434 
power of board of public works to 

open, 493 

power to grant use of, 494 

power of council to close, 543 

approving platting of, 563 

changing grade of, 564 

condemning property for, 635 

changing location of, 639 

power of council to open, 639 

vacation of, ^ 680 

power to contract for cleaning, 733 

power to light, 735 

granting right of way through, 743 

power of trustees to improve, 767 

power of town trustees over, 796 
vacation for union railway company, 833 

street railway securing right to, 844 
See Steeets. 



ALLEY IMPROVEMENTS, 

in towns. 



792 



ALLEY INTERSECTIONS, 

cost of improving, 502, 571, 713, 730 

ALLUVIAL ACCRETIONS, 

easement over, 813 

ALTERATION OF ASSESSMENT, 

treasurer no power to make, 100 

ALTERING RECORDS, 

penalty for, 874 

AMENDMENT, 

to municipal charter, effect, 9 
to state constitution, effect on con- 
tracts, 10 
to special charter, 41, 49, 56 
to an amended law, effect, 57 
superseding original act, 57 
to municipal charter, 60 
to ordinance, 121 
effect of to ordinance, 122 
to petition for drainage, 188 
to transcript on appeal from precept, 290 
to metropolitan police act, 344 
to city charter, 462 
on appeal in annexation proceedings, 679 
to engineer's estimate, 720 

AMENDMENT TO ORDINANCE, 

effect of acceptance of, 11 



AMOUNT OF ASSESSMENT, 
contesting. 



41'; 



942 



INDEX. 



[Beferences are to Pages.'] 



ANIMALS, 

allowing to stand loose in streets, 
regulating running at large, 
prohibiting running at large, 
irupounding, 
prohibiting running at large, in cities, 605 
preventing from running at large, 765 
See Impounding Animals. 



135 
378 
470 
470 



ANIMALS EUNNING AT LARGE, 

city regulating, 



135 



ANNEXATION, 

Generally. 
is not a taking of property, 17, 28 
appeal in case of, 33 
taxation of property annexed, 208 
taxes where illegal, 212 
filing lands illegally annexed, 213 
extension over platted lots, 317 
recording plat, 318 
extension over contiguous lands, 320 
action of council, 320 
curative statutes, 320 
can not be questioned by quo war- 
ranto, 320 
proceedings purely statutory, 320 
reasons for, 322 
collateral attack on, 322 
proceedings by county board, 323 
legislative not judicial, 323 
copy of order as evidence of, 324 
partial annexation void, 324 
appeal from, 324, 389 
power of council, 389 

In Cities of 100,000. 
effect on township school property, 389 
remonstrance against, 390 
costs on appeal in, 390 
constitutional law, 391 
appeal by resident freeholder, 391 
parts of city and town not to be an- 
nexed, 391 
debts on, 391 
disannexing territory, 392 

In Cities of 50,000. 
evidence of, 480 
remonstrance against, 480 
appeal from, 481 
part of city or town not to be an- 
nexed, 482 
debts on, . 482 
disannexing territory, 482 

In Cities of 35,000. 
powers of council, 547 
boundaries, 547 
remonstrance, 547 
parts of cities or towns not to be an- 
nexed, 548 
disannexing territory, 549 



annexation—Continued. 

In Cities of 23,000. 

by common council, 614 

remonstrance against, 615 

appeal from, 615 
parts of cities and towns not to be 

annexed, 616 

disannexation proceedings, 616 

l7i Cities and Towns. 

union of cities and towns, 676 

terms and condition, 676 

agreement made public, 676 

election, 676 

tickets, 677 

report of election, 677 

name, 677 

effect of union, 677 

property and debts, 677 
of territory in adjoining county, 678 

survey and plat, 678 

notice of petition for, 678 

action of trustees or council, 678 

effect of, 678 

jurisdiction after, 678 

appeal from county board, 679 

auditor's duty, 679 

legislative character, 679 

judicial examination, 679 

of lots and outlots, 817 

of lands not platted, ' 817 

duty of county board, 819 

lost plat, 819 

reason for, • 819 

remonstrance against, 819 

appeal in, 819 

title to school property, 916 
reimbursement of school township, 916 

ANNEXATION ORDER, 

filing copy with recorder, 323 

ANNUAL ELECTION, 

in towns, 752 
See Elections. 

ANNUAL INSTALLMENTS, 

See Installments. 

ANNUAL SETTLEMENT, 

duty of treasurer to make, 102 

ANNUAL TAX, 

town trustees fixing, 782 
See Taxation. 

ANSWER, 

making defense by, 291 

ANSWER IN BAR, 
in suit to foreclose assessment lien, 427 

APARTMENT HOUSES, 

protection against fires, 892 



INDEX. 



943 



[Beferences are to PagesS] 



APPEAL, 

in annexation proceedings, 

33, 324, 389, 481, 547, 615, 679 
from contest of election, 71 
from mayor, 79 
in action to recover penalty, 80 
from order licensing ferry, 112 
jurisdiction on appeal where ordi- 
nance in question, 124 
in harbor condemnation proceedings, 182 
from levee assessment roll, " 193 
to circuit court from levee assessment 

roll, 193 

from opening of street, 283 

from precept, 286 

as direct attack, 290 

right of statutory. 290 

from precept, dismissal, 290 

from precept, questions triable on, 292 

effect on improvement proceedings, 293 

from precept, effect of judgment on, 293 

effect on right to damages, 305 

in street opening proceeding, 308 

practice on, 309 

dissmissal of, 309 

from improvement proceedings, 309 

dismissing proceedings after, 310 
from assessment of damages, costs 

on, 311 
from city court, 331 
by city without bond, 404 
trial of in condemnation proceed- 
ings, 411 
in condemnation proceedings, 451, 567 
from police court, 457, 520, 521 
how taken in condemnation proceed- 
ings, 498, 568, 637 
duty of city attorney to prosecute, 561 
from police court, 621 
city attorney prosecuting, 630 
in contests of elections, 666 
trial of in annexation proceedings, 680 
effect of in annexation proceedings, 680 
in water-works condemnation, 693 
from foreclosure of street improve- 
ment lien, 723 
from sale on street improvement, 726 
in street improvement matters, 729 
when proper remedy instead of in- 
junction, 729 
in park condemnation proceedings, 742 
from order of election to incorporate 

town, 749 

from case for violating ordinance, 782 

from report of commissioners, 809 

in annexation proceedings, 819 

APPEAL BOND, 

in street opening proceedings, 308 

in town incorporation proceedings, 750 
See Bonds. 



APPEAL FROM PRECEPT, 

practice in, 
presumption on, 



291 
292 



APPEARANCE, 

effect of in action to enforce sewer 

assessment, 
effect of, 

waiver of notice by, 
waiver of objections by, 



APPOINTMENTS, 

by board of public safety, 
by heads of departments, 



582, 



84 
159 
301 

751 



649 
626 



APPRAISEMENT, 
of real estate for taxation, 
of real estate before sale by city, 
in condemnation proceedings, 
of benefits and damages by sewer 

outlet, 
for taxation, 
preceding improvement, 
before sale of city property, 474, 

before sale of public property, 
for city taxation, 

Avhere property condemned for water- 
works, 
of real estate for town taxation, 
of benefits and damages by opening 

street, 
of street railway plant, 

APPRAISERS, 
in condemnation for parks, 
where land taken for cemetery, 
in park condemnation, 
on opening of street, 
where sewers are constructed in town, 
order issued to, 

presumption as to discharge of duty, 
fees of in constructing town sewer, 

APPROACHES, 
duty of railroad company to build, 

APPROACHES AT CROSSINGS, 
duty of railroad company to main- 
• tain, 

APPROACHES TO RAILROAD 
CROSSING, 
duty to maintain, 

APPROPRIATING PROPERTY, 

See Condemnation. 

APPROPRIATIONS, 

when forbidden, 

continued where no tax levy made, 

emergency for, 

contracts limited to, 

issuing warrants beyond, 

duty of comptroller to guard 

before drawing warrant, 

when continuons, 480, 

veto of ordinance making, 

not to be overdrawn, 488, 



87 
167 

182 

187 
211 
413 
543 
610 
656 

691 

784 

806 
845 



451 

706 

741 
807 
821 
821 
821 
823 



266 



151 



830 



176 
389 
399 
399 
400 
401 
479 
547 
484 
559 



944 



INDEX. 



[Beferences are to Pages.'] 



APPROPRIATIONS— Continued. 

ordinance making, 557 
to pay judgment, mandamus to com- 
pel", 561 
making by ordinance, 602 
continuation of, 614 
basing on estimates, 626 
to pay judgments, 631 

APPROPRIATION OF LAND, 

for harbor, 181 

for streets, 224 

payment or tender, 312 

for cemetery, 705 

injunction to prevent wrongful, 808 

taken for one public use, 810 

of street railway plant, 845 

of street railway property, 852 

for water-works, 862 
See Condemnation. 

APPROPRIATION ORDINANCES, 

signing, 535 

ACQUEDUCTS, 

board constructing, 646 

assessments for, 646 

AREA, 
basing sewer assessments on, 

429, 509, 510, 579, 713 

ARMS, 

security for, 671 

distribution of, 671 

ARREST, 
electors free from, 38 
duty of marshal to make, 92 
without process, 94, 95 
when may be made without warrant, 94 
marshal using force in making, 95 
fire engineer making, 327 
without warrant, 341 
by members of police force, 441 
power of policemen to make, 514, 651 
duty of police to make, 515, 516 
duty of policemen as to, 524, 585, 586 
in actions by city, 623 
duty of policemen on making, 653 
by marshal, 760 
liability for acts of marshal in mak- 
ing, 760 

ARREST OF JUDGMENT, 

where person is injured on street, 234 

ARTICLES OF FOOD, 

providing for inspection of, 606 
See Food. 

ARTICLES OF INCORPORATION, 

library association, 931 

recording, 931 

ASSAULT AND BATTERY, 

by town trustees, 762 



ASSESSMENT AND COLLECTION, 
See Department of Assessment and Col- 
lection ; City Treasurer ; Comptroller. 



ASSESSMENT FOR TAXATION, 
how made. 

See Taxation. 



ASSESSMENT LIEN, 
priority over mortgage lien, 
when it attaches, 
complaint to foreclose, 
superior to mortgage lien, 
redemption from sale. 
See Lien. 



589 



34 
280 
427 
714 
721 



192 
418 

419, 426 
419 

431, 



ASSESSMENT ROLL, 
for construction of levee, 
affidavit of contractor to, 
as an exhibit, 
executing duplicate of, 
for sewers, 431, 580 

in condemnation for parks, 452 

confirmation in park proceedings, 453 

in condemnation proceedings, 499 

notice of, 504 

remonstrance against, 504 

copy of to treasurer, 505 

duty of treasurer in reference to, 506 

for general sewer, 510 
in street improvements, 572, 640 

preparing duplicate, 573 

preparing duplicate of, 641 

for taxation in towns, 783 

ASSESSMENTS, 
for public improvements, 19, 41 

for public improvement, notice 

essential to validity of, 25 

notice of, due process of law, 28 
general assemblj^ providing system 

of, 45 

in local taxation, 47 
for street improvement, 53, 279, 280 

by treasurer, for taxes, 100 

for sewers, 158 

waiver of irregularities in, 159 

enjoining, 159 

against right of way, 159 

for sewer, collateral attack on, 160 

as liens, 182 

how those for docks collected, 184 

for repair or construction of docks, 184 

for costs of constructing sewer, 185 

for sewers, law g*overning, 186 

in drainage, remonstrance to, 188 

for inlets and outlets to sewers, 190 

collecting for constructing levees, 195 

according to running foot, 280 
reaching land back from line of 

street, 281 



INDEX. 



945 



\_Beferences are to Pages."] 



ASSESSMENTS— Continued . 

power to levy, 282 

construction of statutes authorizing, 282 

vacating void one, 283 

precept for collection of, 285 
objection on ground of being void as 

to others, 290 

when injunction lies to restrain, 294 

for opening street, collection of, 307 

treasurer reports collection of, 307 
where buildings destroyed to prevent 

fires, 327 
for parks, 356 
sheriff collecting precepts for, 360 
duty of county auditor, 361 
in condemnation proceedings, 411 
demand for in condemnation pro- 
ceedings, 412 
citv's liability secondary, 415 
lien of, 416, 503, 723 
sales under, 416 
effect of election to pay in install- 
ments, , 417 
contesting amount of, 417 
for improvement, 419 
payment before due, 420 
demand before suit on, 420 
duty of treasurer as to, 421 
penalty for default in payment of, 423 
when too late to question, 425 
pledged to holders of bonds, 425 
paying by check, 426 
for change of levees, 427 
for constructing main sewers, 430 
for sprinkling and sweeping, 435 
for cleaning streets, 435 
in condemnation for parks, 45.2 
of benefits and damages in condem- 
nation proceedings, 497 
for building sidewalk, 501 
paying in installments, 501, 504, 571 
according to the front foot, 502 
sale to pay, 503 
payment of, 607 
when too late to question, 507 
failure to pay, all due, 507 
for costs of sewers, 609 
for costs of general sewers, 510 
for sprinkling streets, 512 
issuing bonds for, 574 
prepayment, 575 
how enforced, 576 
law governing sales on, 577 
for levees, viaducts and tunnels, 578 
collecting those for sewers, 580 
for sprinkling and sweeping streets, 581 
enforcing payment of by sale, 644 
how those for sewers paid, 647 
for taxation, 656, 687 
in water-works proceedings, 692 
for building sewers, 701 
collateral attack on, 709 
direct attack on, 713 

CiT. AND To,— 60 



ASSESSMENTS— Continued. 

estoppel to question, 713 

enjoining collection, 714 

based on engineer's report, 717 

correcting, 717 

based on benefits, 717 

notice of hearing on, 718 

council hearing objections to, 718 

right of contractor to foreclose, 719 

collecting as taxes are collected, 719 

how paid, 720 

two methods of collection, 721 

complaint to foreclose, 721 

against railroad right of way, 723 
injunction to prevent collection of, 724 

secondary liability on, 725 

for sidewalks, 732 

in cities of 12,000, 733 

actions to enforce, 734 

of real estate for town taxation, 785 
against railroad right of way for street 

improvement, 793 

suit to collect, 794 

complaint to enforce, 795 

for appropriation of real estate, 808 

appraisers making for sewer, 821 

enforcement of for sewers, 823 

liability of street railway for, 841 

for police pension fund, 904 



See 



Installments ; Local 
Taxation. 



Assessment ; 



ASSESSOR, 
duties of as to tax list, 86, 87 
appointing assistants, 87 
common council appointing, 87 
ofiice abolished, city of 70,000, 357 
payment for services, 443 
penalty to accept pay, 443 
failure to perform duties, 443 
to assess benefits for parks, 452 
appraising real estate for town taxa- 
tion, 785 
See Appraisers. 

ASSIGNMENT OF CONTRACTS, 

power to make, 278 

for street improvements, 795 



ASSIGNMENT OF ESTIMATE, 
ratification of, 

ASSISTANTS, 
assessor appointing. 

See Deputy. 

ASSISTANT CITY ATTORNEY 
appointment and salary of. 



ASSUMPTION OF RISK, 
in using bridge, 
knowledge of obstruction in street, 802 
See Knowledge. 



285 
87 

403 
249 



946 



INDEX. 



ATTACHMENT, 
firemen's pension fund exempt from, 900 
policemen's pension fund exempt 

from, 900 

ATTORNEY, 

contract with, 118 

See City Attorney. 



{Beferences are to Pages."] 

BAILIFF IN POLICE COURT, 



190 

507 
453 
503 

578 



719 
723 
734 

830 
909 



ATTORNEYS' FEES, 
in collecting drainage assessment, 
in foreclosing assessment, 

416, 425, 499 
for foreclosing assessment for parks, 
on street assessment, 
in suit to foreclose bonds, 
on foreclosure of street improvement 

lien, 707, 713 

where assessments foreclosed, 
in action for foreclosure, 
in actions to enforce assessments, 
where railroad fails to maintain 

crossing, 
contract of school corporation for 



bond and duties of, 


459 


salary of, 459 


,522 


bond. 


522 


duties of, ■ 


522 


powers of, 


523 


BAILIFF OF COURT, 




bond of. 


622 


duties of. 


622 


BALLOT, 




elections to be by, 


38 


in voting on ordinances, 


776 


form of in election to vote educa- 




tional aid. 


919 


See Elections. 





BANK OF STATE OF INDIANA, 

taxing stock of, 



209 



AUCTION, 

sale of chattels at for taxes, 101 

regulating sales at, 147 

town trustees regulating, . 765 

AUCTIONEERS, 
hcensing, 147, 608 

power to license, 540 



AUDITOR, 

as city officer, 

to put taxes on duplicate, 590. 

See County Auditor. 

AUDITOR OF COUNTY, 

duty as to assessments, 

See County Auditor. 



67 
657 



361 



AUDITOR OF STATE, 
consenting to improvement of street, 

274, 708 



BANK STOCK, 
assessment of for taxation, 
taxation of, 
paying taxes on, 
taxes a lien on, 
how valued, 

BANKING, 

library company not to do, 

BATHING IN RIVER, 

city regulating. 



87, 686 

208, 684 

686 

687 

687 



927 



135 



BELLS, 

city regulating ringing of, 136 

negligence in failure of railroad to 

ring, 151 

prohibiting ringing of, 605 



AYES AND NOES, 
on passage of ordinances, 
on adoption of survey and plat, 
See Yeas and Nays. 

B 

BACKING TRAIN, 
watchman on back of, 



467 
681 



270 



BADGES, 
patrolmen to wear, 515 

firemen and policemen to wear, 585, 652 

BAIL, 
excessive not to be required, 26 

authority of marshal as to, 95 



BENEFICIARIES, 
firemen's pension fund, 

! BENEFITS, 

local assessments based on, 
by sewers, 
by outlet to sewer, 
b}'^ construction of levees, 
improvements regarded as, 
loss of, 

by opening of street, 
assessing for opening of street, 
meaning of special, 
in opening of street, 
lien for, 

paying into city treasury, 
city treasurer collecting, 
collecting from non-residents, 
appealing from assessment of, 
by vacation of street, 
assessment of, 
by sewer, 

in condemnation proceedings, 
497, 499, 



898 



19 
158 

186 
192 
282 
298 
300 
302 
303 
304 
306 
306 
307 
307 
308 
313, 314 
410, 568 
433 

567, 636 



INDEX, 



947 



BENEFITS— Continued. 
lien of, 568 
collection of, 568 
assessing in condemnation proceed- 
ings, . 637 
collecting in condemnation proceed- 
ings, 638 
where land condemned for sewers, 702 
apportioning costs according to, 713 
assessment based on, 717 
action of council in assessing con- 
clusive, 720 
from opening street, 807 
effect of acceptance of, 808 

BENEFITS AND DAMAGES, 

assessing on account of sewer outlet, 188 

appraising in drainage proceedings, 189 

condemnation for parks, 451 

tender in park proceedings, 454 

payment in park proceedings, 454 
See Benefits; Damages. 

BEQUESTS, 

power of council to receive, 469 

to police pension fund, 903 

BEST BIDDER, 

awarding contract to, 709 

BICYCLE, 

use on sidewalk, 244 

as a vehicle, 768, 867 

, keeping off sidewalks, 768 
city and town ordinances regulating 

use of, 867 

BIDDERS, 

filing affidavit, 635 

notice to, 709 

letting sidewalk contract to lowest, 732 

for street railway franchise, 852 

BIDS, 

for constructing levee, 194 

power to choose from, 277 

right to consider, 277 
question of not proper on appeal from 

precept, 292 

at tax sale, enforcing, 366 

for public work, 409 

notice calling for, 428 

advertising for, 501 

for sprinkling streets, 511 

in letting contracts, 565 

for sewers and drains, 580 

payment of those at tax sale, 593 

on contracts, 634 

at tax sale, enforcing, 660 

for electric light plant, 772 

parol acceptance of, 793 



[Beferences are to Pages.l 

BILLS OF MORTALITY, 

regulating keeping of, - 



BILLIARD SALOON, 
requiring license of, 



BIRTHS, 

report of, 

BIRTHS AND DEATHS, 

record of, , 

power to require record of, 

registration of. 



137 



746 



470, 595, 606 
538 
662 



BLOWING WHISTLE, 
negligence of railroad company in, 

BOARD OF ALDERMEN, 

president of, 

records of, 

pay of members, 

president acting as mayor, 

BOARD OF ASSESSORS, 
appointment of, 

See Assessors. 

BOARD OF CANVASSERS, 
duties in educational aid election, 

BOARD OF COMMISSIONERS, 

creating precincts, 

constructing bridges in cities and 

towns, 
discretion in building bridges. 



268 



74 
74 
74 
74 



433 



920 



665 

805 
806 



See County Commissioners; County 
Board. 

BOARD OF ELECTION, 
duties of, 750 

See Elections. 

BOARD OF EQUALIZATION, 
who constitute for city, 211 

BOARD OF EXAMINERS, 
for civil service, 385 

BOARD OF HEALTH, 



common council selecting. 


108 


member as city officer, 


108 


when contract with member is in- 




valid, 


114 


power to establish, 


146 


not required to act as physicians, 


147 


member as city officer, 


147 


CARD OF HEALTH AND CHARI- 


TIES, 




In Cities of 100,000. 




appointment of, 


444 


duties, 


444 


salaries, 


444 


appointments bj'', 


444 


duty of appointees, 


444 


preparing health ordinances, 


445 


appointing phimbing inspector, 


445 



948 



INDEX, 



iBefen 

BOAED OF HEALTH AND CHARI- 
TIES— Continued. 

In Cities of 50,000. 

appointment of, 518 

salary, 518 

duties, 518 

appointments by, 518 
duties and powers of appointees, 518 

food inspectors, 518 

duty to prepare ordinances, 519 

In Cities of 35,000. 

appointment of, 594 

salaries of, 594 

duties of, 594 

appointments by, 595 

duties of appointees, 595 

duty to prepare ordinances, 595 

appointing plumbing inspector, 595 

In Cities of 23,000. 

appointment of, 661 

salaries of, 661 

duties of, 661 

appointments by, 662 

duty of appointees, 662 

inspecting food, 662 

duty to prepare ordinances, 662 

powers of officers of, 662 

In Towns and Cities. 

in towns, 670 

secretary of in towns, 670 

local board, 744 

secretary of, 744 

compensation and duties, 744 

removal of, 744 

who constitute, 744 

dut}'' of secretary, 745 

report of births, 746 

report of deaths, 746 

contagious diseases, 746 

burial permits, 746 

misdemeanors and penalties, 746 

BOARD OF PARK COMMISSIONERS, 

appointment of, 445 

oath of members, 445 

terms of office, 446 

chairman. 447 

clerk of, 447 

employes of, 447 

removing appointees, 447 

office of, 447 

records of, 447 

report to mayor, 447 

receipts and expenditures, 447 

quorum, 447 

superintendent of parks, 447 

government of parks, 447 

powers of, 447 

may bring actions, 448 

charge of parks, 448 

adopting rules and regulations, 448 

tender of benefits and damages, 454 
payment of benefits and damages, 454 

payment for lands, 454 



are to Pages.'] 

BOARD OF POLICE, 

appointment of, 

BOARD OF PRISONER, 

liability for, 



54 
163 



BOARD OF PUBLIC IMPROVEMENTS, 

power to organize, 142 

BOARD OF PUBLIC PARKS, 

authority of, 449 

expenditures by, 449 
franchises for railway prohibited, 449 

sale of park lands, 449 

erection of buildings, 449 

grants for parks, 450 

conveyances for parks, 450 

devises for parks, 450 
admission to gardens and museums, 450 
power over streauis and water-courses 

in city, 451 

adopting rules and regulations, 451 

ordinances, 451 

power of eminent domain, 451 

assessment and damages, 451 
appeal in condemnation proceedings, 451 

assessments, 451 
description of land filed in recorder's 

office, 455 

BOARD OF PUBLIC SAFETY, 
In Cities of 100,000. 

appointment of, 437 

salary of, 437 

rules, 437 

quorum of, 437 

chairman, 437 

clerk, 437 

duties of, 438 
removing members of fire and police 

force, 438 
hearing charges against firemen and 

policemen, 438 

powers of policemen, 439 

duties of policemen, 439 

additional fire and police force, 439 

who may administer oaths, 440 

duties of police force, 440 

gaming, suppressing, 441 

arrest and trial of offenders, 441 

political work prohibited, 441 

bonds of appointees, 442 

insurance fund, 442 

In Cities of 50,000. 

appointment, 512 

bonds, 512 

salaries, 512 

rules for government of police, 512 

quorum of, 512 

clerk for, 512 

officers appointed by, 513 

superintendent of police, 513 

fire chief, 513 

market-master, 513 



INDEX. 



949 



lEeferences a 

BOARD OF PUBLIC SAFETY— Cont'd. 

control of police, 513 

creating fire districts, 513 

term of firemen and policemen, 514 

removal of firemen and policemen, 514 

powers of policemen, 514 

policemen to convey prisoners, 514 

powers of, 515 

detail of police, 515 

special policemen, 515 

duty of police force, 515 

garaing-houses, 516 
duty of policemen on making arrests, 516 

not to interfere in politics, 516 

bond of appointees, 517 

insurance fund, 517 

III Cities of 35,000. 

appointment, 582 

salary, 582 

rules, 582 

quorum, 582 

chairman of, 582 

record of, 582 

duties of board, 583 

control of firemen and police, 583 

terms of firemen and policemen, 583 

removal of firemen and policemen, 583 

punishing firemen and policemen, 583 

powers of policemen, 584 

duty of policemen as to prisoners, 584 

appointing additional policemen, 584 

administering oaths, 585 

duties of policemen, 585 

bond of appointees, 586 

setting aside insurance fund, 586 

In Cities of 23,000. 

appointment, 649 

bond, 649 

salary, 649 

rules, 649 

quorum, 649 

chairman, 649 

record of, 649 

powers and duties of, 649 

control of firemen and police, 650 

terms of firemen and police, 650 

removal of firemen and police, 650 

punishment of firemen and police, 650 

powers of policemen, 650 

duty as to prisoners, 651 

detail of policemen, 651 

additional policemen, 651 

administering oaths, 652 

duties of policemen, 652 

suppressing gaming-houses, 652 

bonds of appointees, 653 
board of public works performing 

duties of, 653 

pensions and pension fund, 653 
fines by as part of police pension 

fund, 903 



re to Pages.'] 

BOARD OF PUBLIC WORKS, 
how may be appointed, 
legislature can not select, 

In Cities of 50,000. 
appointment of, 
bond of members, 
duties of, 
salary of, 
repairs of streets, 
control of street improvements, 
recommending street improvements, 
meetings of, 
quorum, 

record of, 334, 

record of proceedings, 
employment of laborers, 
estimates of costs, 
power to create liability, 
payment on contracts, 
president and clerk of, 
preservation of property, 
office of, 
expenses of, 
appointment of officers, 
penalty for interfering with. 

In Cities of 100,000. 

appointment, 

salaries, 

bonds, 

rules, 

mayor appointing, 

meetings of, 

appointing clerk, 

salary of clerk, 

appointing civil engineer, 

salary of engineer, 

powers of, 405, 406, 

power over street railway compa- 
nies, 

removal of garbage, 

how work to be done, 

drawings for work, 

notice of letting, 

collusion, 

condemnation of property, 

list of owners of property taken, 

assessment of damages and benefits, 

minors and insane persons, 

what damages paid by city, 

certificates for damages, 

order for improvement, 

remonstrance, 

appraisement, 

costs of improvements, 

improvement of one side of street 
or sidewalk, 

lots liable to assessment, 

liens, 

sales, 

redemption, 

payment by installments, 417, 



39 
53 



333 
334 
334 
334 
334 
334 
334 
334 
334 
336 
335 
335 
335 
335 
335 
335 
336 
336 
336 
336 
336 



404 
404 
404 
404 
404 
404 
405 
405 
405 
405 
407 

408 
408 
408 
408 
408 
408 
409 
409 
410 
410 
412 
412 
413 
413 
413 
414 

414 
416 
416 
416 
416 
420 



950 



INDEX. 



[Beferences a 

BOARD OF PUBLIC WORKS— Cont'd. 

assessment roll, 418 

improvement assessments, 419 

notice to delinquents, 419 

acceptance of improvement^ effect, 419 

judgment of quasi-judicial, 420 

effect of acceptance by, 427 
change of levees or water-courses, 

427, 508 
establishing sewers and drains, 427 
how costs of sewers paid, 429 
constructing main sewer, 430 
constructing levees, drains and water- 
courses, 431 
proceeding where property outside 

of city affected, 432 
contracts for sprinkling and sweeping, 434 

cost of sprinkling and sweeping, 434 

collection of sprinkling assessments, 436 

contracts for lamp posts, 436 

In Cities of 50,000. 

appointment, 492 

salaries, 492 

bonds, 492 

clerk of, 492 

salary of clerk, 492 

appointing city engineer, 492 

salary of city engineer, 492 

bond' of city engineer, 492 

powers and duties, 493, 494 

repairing and cleaning streets, 495 

letting contracts for work, 496 

expenses of board, 496 

appropriating property, 496 

list of owners of property affected, 497 

damages and benefits, 497 

insane persons and infants, 498 

remonstrances, 498 

how appeal taken, 498 

effect of judgment on appeal, 498 

assessments for benefits, 499 

damages paid by city, 499 

street improvements by, 500, 508 

change of levees and water-courses, 508 

constructing local sewers, 508 

contracts for sprinkling streets, 511 

In Cities of 35,000. 

, appointment, 561 

salary, 561 

bonds, 561 

appointing engineer, 562 

salary of engineer, 562 

duties and powers of, 562 

contracts for work, 565 

letting contracts, 665 

bids, 565 

collusion, 565 

paying expenses of board, 566 

appropriating property, 566 

roll of owners of property, 566 

award of damages, ' 566 

insane persons and infants, 567 



re to Pages.'] 

BOARD OF PUBLIC WORKS— Cont'd. 

remonstrance, 567 

appeal, 567 

lien of benefits, 568 

city paying damages, 568 

order for street improvement, 569, 577 
constructing levees, viaducts and 

tunnels, 578 

constructing sewers and drains, 579 
contracting for sprinkling and 

sweei^ing, 581 

contracting for lamp posts, 582 

In Cities of 23,000. 

appointment, 631 

salary, 631 

bonds, 631 

record of proceedings, 631 

appointing engineer, 632 

salary of engineer, 632 

powers and duties of, 632 

contracts for works, 634 

letting contracts, 634 

drawings and specifications, 634 

notice, 634 

bids, 634 

paying expenses of, 635 

appropriating property, 635 

roll of owners of property, 636 

awards and assessments, 636 

ordering street improvements, 639 
constructing levees, viaducts, tunnels, 

acqueducts and water-courses, 646 

constructing sewers and drains, 646 
performing duties of board of public 

safety, 653 

fixing terms of use by suburban line, 838 

letting street railway contract, 848 

exclusive powers over streets, 853 

See Condemnation Proceedings. 

BOARD OF SCHOOL COMMISSIONERS, 



powers of, 

qualifications, 

ineligible to other offices, 

nomination on petition, 

elected at regular city election, 

first election, 

organization, 

terms of, 

annual organization, 

treasurer of city treasurer of board. 



922 
922 
922 
922 
922 
923 
923 
923 
923 
923 



duties of, 923, 924 
city comptroller is auditor of board, 924 
issues warrants, 924 
may require proof of claim, 924 
illegal warrants, 924 
money drawn only on appropria- 
tions, 924 
auditor's annual report, 924 
mavor appointing expert account- 
ants, 924 
money paid to treasurer, 925 
special tax, separate account, 925 
cities governed by act, 925 



INDEX. 



951 



\_Beferences are to Pages.'] 



BOAED OF TRUSTEES, 




levying tax for sinking fund, 


672 


control of water-works, 


695 


condemning for parks, 


741 


action must be as a board. 


762 


of firemen's pension fund, 


893 


composition of board, 


894 


by-laws, 


894 


oaths, 


894 


See Trustees of Town; Town Trustees. 


BOAEDING CAES, 




rules as to, 


272 


negligence in. 


272 



BOAEDING-HOUSES, 
protections against fires, 

BOAEDING PEISONEES, 

fees for, 

liability of city for, 

pay for, 

BODIES OF THE DEAD, 
ownership of, 
removal of, 

BONA FIDE HOLDEES, 

of bonds, 

of railway aid bonds, 

rights of, 

See Bonds. 

BONDHOLDEES, 

notice to, 

assessments pledged to, 

lien in favor of. 



892 



554 
669 

780 



126, 703 
703 



173 

198 
479 



423 
425 
425 



BONDS— PENAL AND OFFICIAL, 

of city officers, 
mayor giving, 

action on that given to city, 
liability on city clerk's, 
liability on official, 
required of city officers, 
on appeal from levee assessment roll 
on appeal from precept, 
of city judge, 

members of board of public works, 
of police commissioners, 
of secretary of police board, 
of officers in police and fire depart- 
ment, 
police commissioners giving, 
of police officers, 
of metropolitan police boards 
of park commissioners, 
of county treasurer, 
officers giving, 
effect of failure to file, 
city attorney giving, 
appeal by city without giving 
board of pubUc works, 404, 492, 631 

board of public safety giving, 437, 512, 649 



348, 



76 
78 
85 
103 
103 
193 
290 
328 
334 
338 
338 

343 
344 
354 
348 
356 
358 
372 
372 
403 
404 



BONDS— PENAL AND OFFICIAL— Con 

TINUED. 

of police judge, 

of elective officers, 

officers required to give, 

comptroller's, 

of city treasurer, 

water-works trustees, 

ofiicers executing, 

mayor giving, 

of city attorney, 

of board of public works, ^ 

requiring contractors to give, 

power of board of public safety to 
require from appointees, 

treasurer giving, 

of officers, 

court bailiff giving, 

of city attorney, 

appointees of board of public safety 
giving, 

of treasurer, 

as security for arms, 

on appeal in annexation proceed- 
ings, 

of superintendent of water-works 

of water- works trustees, 

requiring from contractors, 

to fulfill electric light contract, 

of town officers, 

breach of by town treasurer, 

of deputy marshal, 

that street railway will pay for im- 
provements, 

where street railway plant con- 
demned, 

by street railway, 

president trustees of firemen's pen 
sion fund. 



456 
464 
486 
488 
518 
524 
632 
551 
560 
562 
565 

586 
587 
599 
623 
630 

653 
654 
671 

679 
696 
696, 698 
715 
737 
758 
759 
761 

839 

845 
852 

897 



BONDS— MUNICIPAL, 

restricting taxing power for payment 

of, effect, 9 

power of legislature to ratify, 50 

where limit of indebtedness exceeded, 51 
for school-house, 52 

effect of recitals in, 52, 172 

issuing for purchase of real estate, 163 
issuing for water-works, 168, 694 

officers executing, 170 

prerequisites to issuing, 170 

authority to issue, 171 

as commercial paper, 171 

recovery upon lo?t bonds, 171 

injunction to prevent issue of, 171 

authority to issue strictly construed, 172 
dut)^ of purchaser of, 173 

legalizing void ones, 173 

when felony to issue, 174 

of sinking fund commissioners, 176 

applying sinking fund to, 178 

sinking fund commissioners pur- 
chasing, 178 
issuing to fund debt, 179 



952 



INDEX. 



[Beferences are to Pages.'] 



BONDS— MUNICIPAL— Continued. 

waiver of defense to, 

to pay for sewer, 

city donating to railroad company, 

sinking fund to pay, 

by border city, 

in payment of subscription to stock, 

levying sinking fund tax to pay, 

issue and sale of, 

redemption of, 

comptroller to keep register of, 

for street improvement, 

issuing to contractor, 

bona fide holder of, 

interest on, 479, 

issue and sale of, 479, 546, 

comptroller keeping register of, 490, 

issuing for street improvements, 506, 

length of time to run, 546, 

mayor signing, 

estoppel to question, 

denominations of, 

to pay for stock in water companies, 

complaint to foreclose, 

issuing to contractors, 

issuing for parks, 

broker selling, 

sale for electric light plant, 

town ordinance to issue, 

commercial paper, 

issuing to build school-houses, 

town trustees issuing, 

injunction to prevent issue of, 

coupons to, 

proceeds to treasurer, 

tax to pay interest on, 

street railway giving to paj^ for street 
improvement, 

power of street railway to issue, 

investing policemen's pension fund 
in, 

officers of school trustees executing, 

issuing for school buildings, 

compensating brokers for selling, 

issuing for donation to state uni- 
versity, 

BONDS OF UNITED STATES, 
not subject to taxation, 



179 

186 
196 
199 
2C1 
202 
214 
387 
389 
401 
421 
424 
479 
480 
613 
629 
574 
613 
619 
645 
673 
699 
715 
725 
743 
763 
773 
777 
777 
778 
778 
778 
778 
779 
779 

840 
849 

904 
909 
912 
913 

918 



208 



BONE FACTORIES, 
regulating location, 469 

BOOK FORM, 
publishing ordinances in, 376, 468, 603 

BOOKS, 
town officers turning over to suc- 
cessors, 758 

BOOKS AND PAPERS, 

clerk as custodian of, 83 



BORDER CITIES, 

aid by, 
bonds by, 

BORDER COUNTIES, 

aid by, 

BORDER TOWNSHIPS, 

aid by, 

BORROWING MONEY, 
power in reference to, 
power of council. 

See Bonds; Loans. 



201 

201 



201 



201 



169 

478 



BOUNDARIES, 

no judicial notice of those of city, 62 

extending over platted lots, 317 

extending over contiguous lands, 320 

power over is legislative, 323 

evidence of, 480 
changing those of \7ards, 534, 601 

fixing in annexation proceedings, 547 

common council fixing, 614 

changing those of precincts, 665 

of towns, 749 

judicial notice of, 751 

BOUNDARIES OF STREET, 

effect of use beyond, 270 

BOUNDARY LINE, 

highway on that of city or town, 826 

BOWLING SALOONS, 

city suppressing, 132 

BREACH OF BOND, 

by town treasurer, 759 

BREACH OF CONTRACT, 

injunction does not lie to prevent, 738 

BREWERIES, 

licensing, 4, 384 

licensing and regulating, 381, 608 

regulating location, 469 

power to license and regulate, 541 

BRIBERY, 

as disqualification for office, 36 

of public officers, 877 

indictment for, 877 

BRIDGES, 
over navigable waters, 6 
who may build in cities and towns, 148 
power to regulate, 148 
duty to repair, 148, 249 
when town charged with maintain- 
ing, 149 
latent defects in, 149 
extraordinary use of, 149 



INDEX. 



[Beferences are to Pages."] 



BEIDGES— Continued.' 

city aiding, 195 

power of common courfcil over, 216 

power over, 226 

as part of street, 248 

duty to repair, 248 

city accepting county, 248 
in cities and towns, 248, 805 

traction engine breaking through, 249 

notice of defective condition of, 249 

outside of but adjoining town, 249 

assuming risk in using defective, 249 

complaint for injury on, 250 

compelling construction of, 266 
private corporation suffering to be 

out of repair, 308 
power to regulate and protect, 379 
requiring railroads to construct, 385 
power of council to protect, 471 
requiring railroads to build, 476 
power of town trustees over, 796 
control of by towns, 806 
liability for negligence in construct- 
ing and repairing, 806 
duty of canal company, 859 

BRIDGE AT STATE LINE, 

purchase by city, 250 

BRIDGE COMPANY, 

city subscribing for stock in, 196 

BROKER, 
validity of ordinance requiring 

license of, 2 

compensation for selling bonds, 913 

BUILDINGS, 

power to condemn, 142 

duty to keep safe, 142 

right to make repairs on, 143 

enjoining erection of, 143 
removing for street improvements, 217 

destruction of to prevent fires, 327 

erecting in parks, 449 

permits for constructing, 606 
providing egress from in case of fire, 890 

BUILDING MATERIAL, 

placing in streets, 134 

in street, 248 



BUILDING PERMITS, 

power to require. 



142, 143 



BURDEN OF PROOF , 
to show that officers do not do their 

duty, 69 

as to freedom from contributory neg- 
ligence, 239 
to negative tender or payment, 312 
freedom from contributory negli- 
gence, 803 
See Evidence. 



BURIAL PERMITS, 

issuing, 

BUSINESS, 
licensing and regulating, 



746 



770 



BUSINESS POWER, 
distinguished from legislative power, 735 

BY-LAWS, 

regulating expulsion of officers. 111 

synonymous with ordinance, 120 

power to change or repeal, 121 

power of common council to enact, 204 
continuing in force, 369, 530, 597 

in force on reorganization, 461 

water-works trustees adopting, 525, 696 
library company adopting, 927 

power of town trustees to pass, 768 

power of street railway to make, 842 

See Ordinances. 

BYSTANDERS, 
assisting to extinguish fires, 327 



CABLE ROAD, 
not an additional burden, 263 

CABS, 
power to establish stands for, 147 

CANALS, 

power of states over, 7 

construction in street, 230 

bridge over, 249 

completion of unfinished, 858 

title to land appropriated for, 859 

effect of abandonment of, 859 

duty as to bridges over, 859 

CANVASS OF VOTES, 
in city election, 70 

CAPTAIN OF POLICE, 

powers of, 585 

See Superintendent of Police. 

CAPITAL STOCK, 

taxation of, 209, 684, 685 

See Stock. 

CARELESS DRIVING, 

liability for, 245 

CARS, 
obstructing highway with, SGS 

CATTLE AT LARGE, 

on the streets, 245 

See Animals. 



954 



INDEX. 



\_Beferences are to Pages.'] 



CAVEAT EMPTOR, 

doctrine of at tax sales, 213, 688, 784 
doctrine applies to tax sales, 786 
doctrine of applying to sales for as- 
sessments, 294 

CEMETERIES, 

control of city over, 126 

when no power to control, 203 

power to regalate location of, 378 
constructing main sewers through, 430 
locating streets or highways through, 460 

locating railways through, 460 

establishing, 470 

regulating location of, 605 

conveyance by county board, 702 

control of, 703 

power to protect, 703 

by dedication, ,703 

city may vacate, 703 

cities accepting control of, 703 

petition for vacation, 704 

new cemeteries, 704 

expense of removal, 704 

removal and reinterment, 704 

effect on title by vacation, 705 

appropriating lands for, 705 

appraisers, 706 

report of, 706 

excepting to report, 706 

town purchasing on credit, 776 



CENSUS, 
order for before incorporation as 

city, 
taken by mayor, public document, 
judicial notice of, 
before incorporation of town, 
affidavit to, 
making public, 

CERTIFICATE, 

on sale for special assessment, 
issuing to contractor, 
of exemption from labor on high- 
ways, 

CERTIFICATE OF CONVEYANCE, 

in sale on precept, 

CERTIFICATE OF ELECTION, 

inspectors returning, 
oath attached to, 
oath on, 

indorsing oath on, 
to town trustees, 
to town officers, 

CERTIFICATE OF ENGINEER, 

in street improvements, 



60 
349 
349 

748 
748 
748 



424 

725 

828 



'27 



71 
103 
532 
599 
754 
755 



504 



CERTIFICATE OF INCORPORATION, 

union railway company, 832 

how signed and attested, 832 



CERTIFICATE OF PURCHASE, 

on sale under precept, 287 

in tax sale, ' 366 

CERTIFICATE OF SALE, 

in sales on assessments, 644 

where property sold for street im- 
provement lien, 707 

CERTIFICATE OF VOTE, 
in educational aid election, 920 

CERTIFIED COPIES, 

fees for furnishing, 485 

of survey and plat as evidence, 682 

CERTIORARI, 
on appeal from precept, 291 

CHAIN AND KNOTTED ROPE, 

duty of hotel keeper to provide, 892 



CHAIRMAN,. 

board of public safety, 

CHALLENGE TO DUEL, 
effect of. 



CHANGE OF BOUNDARIES, 

of precinct, 



437, 582, 649 
36 
665 



CHANGE OF GRADE, 

damages for, 30 

right of city to make, 88 

from that established by town, 89 
damaging property outside of city, 89 

applies to sidewalks, 89 

injunction to prevent, 90 

who may recover damages for, 90 

town not liable for, 91 

not a taking of property, 91 

power of common council, 91 
liability for damages on account of, 257 

abutting ow^ner damaged by, 266 

traveler injured by, 266 

effect of, 407 

of sidewalk, 732 

by towns, 767 

power of town, 800 
See Grade. 

CHANGE OF NAME, 

of town, how accomplished, 815 

CHANGE OF STREET, 

on petition of abutters, 315 

CHANGE OF VENUE, 

from city court, 331 
in annexation proceedings, 390, 481, 548 

in police court, 455 

from police court, 520 

from mayor's court, 552 

in city court, 620 






INDEX. 



955 



[Beferences are to Pages.'] 



CHANNEL OF STEEAM, 

citv ehanginor, 



297 



CHARGES AGAINST FIREMEN AND 
POLICEMEN, 

hearing, 438 



CHARGES AGAINST OFFICERS, 

trial of. 



386 



CHARITIES, 

See Board of Health and Charities. 

CHARTER, 

modification or repeal of, 56 

rales for construction, 61, 369, 530, 747 
strict construction, 116 

surrender of, 179, 180 

construction of, 461, 597 

See Municipal Charters. 

CHARTER TO STREET RAILROAD, 

as a contract, 271 

CHATTELS, 
selling to pay taxes, 100, 101 



CHECK, 

paying street assessment by, 
paying assessment by, 

CHIEF FIRE ENGINEER, 

authority of, 
appointment of, 
bond of, 

CHIEF FIRE INSPECTOR, 

approving fire escapes, 

CHIEF OF THE FIRE DEPART- 
MENT, 

.as city officer, 

CHIMNEYS, 
regulating location of, 

CHINESE, 

ordinance discriminating against, 

CHURCH PROPERTY, 

liable for local assessment, 

CIRCUIT COURT, 
jurisdiction to establish ditch, 
petition to as to sewer outlet, 
docketing drainage petition in, 
appeal to from levee assessment roll, 
appeal to from precept, 
appointing city commissioners, 
appeal to in street opening proceed- 

'ings, 
appeal to in annexation proceed- 
ings, 390, 616, 



421 

426 



326 
340 
343 



891 



379 



21 



282 



153 

187 
188 
193 
286 
296 

310 

679 



CIRCUIT COURT— Continued. 
power in annexation proceedings, 

547, 548 
appeal to in condemnation proceed- 
ings, 567 
punishing for contempt, 612 
appeal to on precept, 726 
condemning for parks, 741 
appeal to in town incorporation 

proceedings, 750 

proceedings in to value street rail- 
way plant, 847 
suit in to appropriate street railroad 
property, 852 

CIRCUMSTANCES, 
evidence of those attending injury, 241 

CISTERNS, 

power to construct and regulate, 152 

power to construct, 185 

CITIES, 

state delegating police power to, 2 

licensing hawkers and peddlers, 3 

parts of not to be annexed, 616 

CITIES AND TOWNS, 

constructing bridges in, 248 

general provisions, 664 

union of, 676 

CITIES-GENERALLY, 

incorporation and organization, 59, 105 
See Incorporation and Organization. 
government and powers, 105, 205 

See Government and Powers. 
taxation, 205, 216 

See Taxation. 
improvement of streets, 216, 295 

See Improvement op Streets ; Street I.m- 

PROVEMENTS. 

opening and vacation of streets, 295, 317 
See Opening Streets; Vacation of 
Streets. 
annexation of territory, 317, 325 

See Annexation of Territory. 
fire department, 325, 328 

See Fire Department. 
city court, 325, 332 

SeeCiTY Court ; Police Court ; Police 

Judge ; City Judge. 
board of public works in cities of 
50,000, 333, 337 

See Board of Public Works. 
metropolitan police and fire depart- 
ment, 33';'. 354 
See Board of Public Safety ; Metropoli- 
tan Police and Fire Department. 
humane inspector, 354, 355 

See Humane Inspector. 
park commissioners, 355, 357 

See Park Commissioners. 



956 



INDEX. 



\_Beferences are to Pages."] 



CITIES OF 10,000, 
metropolitan police board in, 348, 354 

CITIES OF 10,000 to 35,000, 

police commissioners in, 343 

officers appointed by, 344 

salaries of officers, 344 

removal of officers, 344 

officers of board, 345 

president, 345 

secretary, 345 

clerk, 345 

rules and regulations, 345 

power and authority, 345 

how expenses of paid, 346 

how municipal process served, 346 

penalty for interfering with, 347 

fees and compensation of, 347 

appointing additional patrolmen, 347 

duty on election days, 348 

bonds of officers, ' 348 

CITIES OF 12,000, 

street improvements in, 733 

CITIES OF 15,000, 

law governing, 72 

councilmen, 72 

aldermen, 72 

legislation in, 73 

elections in, 73 
separate action of councilmen and 

aldermen, 73 

officers. 74 j 

election of, 74 

president board of aldermen, 74 j 

records, 74 

journal, 74 

pay of councilmen and aldermen, 74 
president of board acting as mayor, 74 

CITIES OF 23,000, 

Incorporation and Officers. 
cities governed by act, 597 
elective officers, 598 
elections in, 598 
powers of old officers continued, 598 
vacancies in office, 599 
notice to officers elected, 599 
oaths of officers, 599 
bonds of officers, 599 
officers not to be interested in con- 
tracts, 600 
purchase of claims by officers for- 
bidden, 600 

Common Council. 
legislative authority vested in, 601 
See Common Council. 
Executive and Judicial Officers and Depart- 
ments. 
executive and administrative author- 
ity, where vested, 618 
mayor, 618 
election, 618 



CITIES OF 23,000— Continued. 
qualification, 
term of, 
city clerk, 

vacancy in office of mayor, 
acting mayor, 

duties and powers of mayor, 
cit}' court, 
officers of, 

effects of judgments of, 
seal of, 

change of venue, 
appointment of judge, 
removal of judge, 
jurisdiction of, 
rules, 
oaths, 
appeals, 

judge pro tempore, 
imprisonment, 

vacancy in office of police judge, 
salary of judge, 
clerk of court, 
bailiff of court, 
suits against corporations, 
process, 
arrests, 

commitment for failure to pay judg- 
ment, 
salary of mayor, 
city clerk, duties, 
deputy, salary of, 
departments created, 
qualification of heads of departments 
estimates by heads of departments, 
when city bound by contracts, 
penalty for issuing illegal warrants, 
department of finance. 

See COMPTEOLLER. 

department of law. 

See City Attorney. 
department of public works. 

See Board of Public Works. 
condemnation proceedings, 

See Condemnation. 
street improvements. 

See Street Improvements. 
sprinkling and sweeping streets, 
department of public safety. 

See Board of Public Safety. 
department of assessment and collec- 
tion, 

See Assessment ; Treasurer ; City Treas- 
urer; Auditor; Taxation. 
department of health and charities, 661 
See Board of Health and Charities, 



618 
618 
618 
618 
618 
619 
620 
620 
620 
620 
620 
620 
620 
621 
621 
621 
621 
621 
622 
622 
622 
622 
622 
623 
623 
623 

623 
623 
625 
625 
625 
626 
626 
627 
627 
628 

630 

631 

635 

639 

648 
649 



654 



CITIES OF 35,000, 
city clerk, 
duties, 
salary, 
deputy, 
departments in, 



555 
555 
555 
555 

555 



qualification of heads of departments, 556 



INDEX. 



957 



556 
557 
557 
558 
558 

560 

561 



566 



581 



582 



587 



\_Beferences a 

CITIES OF 35,000 -Continued. 
report of moneys received, 
estimates of heads of departments, 
^Yhen contracts bind city, 
penalty for issuing: illegal warrants, 
department of finance. 

See Comptroller. 
department of law, 

See City Attorney. 
department of public works, 

See Board of Public Works. 
condemnation by board of public 
works, 

See Condemnation, 
sprinkling or sweeping streets. 
See Sprinkling Streets ; Sweeping 
Streets. 
department of public safety, 

See Board of Public Safety. 
department of assessment and col- 
lection. 

See Assessment; Treasurer; Taxation; 
County Auditor. 
department of public health and 

charities, 594 

See Board of Health and Charities. 
water-works trustees, 596 

street railroads in, 836 

Incorporation and Officers. 
cities governed by this act, 530 
elective officers, 531 
election of, 531 
terms of, 531 
powers of old officers continued, 531 
filling vacancies in office, 532 
notice to officers elected, 532 
oaths of officers, 532 
bonds of officers, 532 
officers not to be interested in con- 
tracts, 533 
officers not to purchase claims, 533 

Common Council. 
legislative authority vested in, 534 

See Common Council. 



Executive and Judicial Officers am 
ments. 



Depart- 



executive and administrative author- 
ity, where vested, 550 
mayor, 550 
election, 550 
qualification, 550 
term of, 550 
city clerk, 550 
vacancy in office of mayor, 550 
acting mayor, 551 
duties of mayor, 551 
bond of mayor, 551 
mayor's court, 553 
fees, 553 
who acts in absence of mayor, 553 
suits by city, 553 



re to Pages. 1 

CITIES OF 35,000— CoxNTiNUED. 

suits against corporations, 553 
actions on ordinances, 554 
commitment for failure to pay judg- 
ment, 554 
salary of mayor, 555 

CITIES OF 50,000, 

board of public works in, 333 

See Board of Public Works. 
boards of metropolitan police and 

fire department in, 337 
See Metropolitan .Police Departments. 

Incorporation and Officers. 
cities governed by this act, 461 
elective officers, 462 
election of, 462 
powers of officers under old charters, 463 
vacancies, filling of, 463 
notice to persons elected, 463 
oaths and bonds of officers, 464 
officers not to be interested in con- 
tracts, 484 
officers not to purchase claims, 464 

Common Council. 

legislative authority vested in, 465 
See Common Council. 

Executive Officers and Departments. 
executive and administrative powers, 

where vested, 483 
mayor, 483 
election, 483 
term of, 483 
qualifications of, 483 
vacancy in office of, 483 
acting mavor, 484 
duties of, " 484 
salary of, 485 
city clerk, 485 
deputies, 485 
duties, 485 
salary, 485 
fees, 485 
departments established, 486 
qualifications of heads of depart- 
ments, 486 
payment of moneys received, 486 
estimates by departments, 487 
limit of power to bind city, 488 
penalty for officers exceeding author- 
ity, 488 
department of finance, 488 

See Comptroller. 

department of laAV, 491 

See City Attorney. 

department of public works, 492 

See Board of Public Works. 

condemnation proceedings, 496 

See Condemnation. 

street improvements, 500 
See Street Improvements. 



958 



INDEX, 



{^Beferences m 

CITIES OF 50,000— Continued. 

sprinkling streets, 511 

See Sprinkling Streets. 

department of pablic safety, 511 

See Board of Public Safety. 

department of collection, 517 

See City Treasurer; Taxation. 

department of health and charities, 518 
See Board of Health and Charities. 

police court, 519 

See Police Court. 

department of water-works, 524 
See Water-Works; Water-Works Trus- 
tees. 

school trustees, 527 

See Schools. 

taxation, 528 

See Taxation. 

wharfmaster, 629 

CITIES OF 70,000, 
offices of assessor and treasurer 

abolished, 357 

duties of count}^ treasurer, 358 

city treasurer to make settlement, 358 
city treasurer's settlement with city 

clerk, 359 
license or special tax, how collected, 360 

sheriff to collect all assessments, 360 
assessment and appraisement for 

taxes, 360 
auditor of county to deliver aggre- 
gate assessments, 361 
how levy of tax is made, 361 
tax levies, how certified, 362 
county treasurer to give notice, 362 
delinquent taxes, penalty, 362 
sale of personal property for taxes, 363 
settlement with county auditor, 363 
payments to school commissioners, 364 
monthly settlements witli commis- 
sioners, 364 
credit for school taxes, 364 
collecting delinquent tax, 365 
when settlement to be made, 365 
paying delinquent tax, 365 
return of delinquent lands, 365 
enforcing payment of taxes by sale, 366 
enforcing bids at tax sale, 366 
compensation of auditor and treas- 
urer, 367 
expense to county, how determined, 367 

CITIES OF 100,000, 
penalty for issuing warrants beyond 

appropriations, 400 

department of finance, 400 

See Comptroller. 

department of law, 403 

See City Attorney. 

department of public works, 404 

See Board of Public Works. 

condemnation of property, 409 
See Condemnation. 



e to Page S.I 

CITIES OF 100,000— Continued. 

sprinkling or sweeping streets, 434 
See Sprinkling Streets ; Sweeping 
Streets. 

department of public safety, 437 

See Board of Public Safety. 
department of assessment and col- 
lection, 442 
See Assessment; City Treasurer; Tax- 
ation. 
department of health and charities, 444 
See Board of Health and Charities. 
department of public parks, 445 

See Public Parks. 

police court, 455 

See Police Court. 

cemeteries, 460 

See Cemeteries. 
construction of street railway tracks 

in, 838 
Incorporation and Officers. 

what cities governed by this act, 369 

officers of, 370 

election of, 370 

contests of election, 370 

powers of old officers, 371 

elections to fill vacancies, 371 

officers to qualify, 372 

oaths and bonds of officers, 372 

contracts with officers prohibited, 372 

officers not to purchase claims, 373 



Common Council. 
legislative authority vested in, 
See Common Council. 



373 



Executive Officers and Departments. 
vesting of executive authority, 393 
mayor and clerk, 393 
election, 393 
qualifications, 393 
vacancy in office of mayor, 394 
acting mayor, 394 
duties of mayor, 394 
salary of mayor, 396 
clerk, 396 
duties, 396 
salaries, 396 
departments created, 397 
departments adopting rules, 397 
qualifications of members of depart- 
ments, 398 
estimates of expenditures, 398 
appropriations, 398 
contracts limited to appropriations, 399 

CITIZENS, 
constitutional privileges and im- 
munities, 1 
discriminating between those of dif- 
ferent states, 3 
privileges and immunities of, 14, 15 
when corporations not regarded as, 14, 16 
when liable for defects in street, 236 
crossing made by, 244 



INDEX. 



959 



[Beferences a 

CITY, 

taxing non-resident for school pur- 
poses, 46 
liabilitj^ for its acts, 106 
may construct harbor, 180 
Avhen bound by contracts, 627 

CITY ACCOUNTS, 

comptroller auditing, 558 

prescribing form for keeping, 560 

CITY ASSESSOR, 
office of abolished, 88, 215 

CITY ATTORNEY, 



as city officer. 


66 


removal from office, 


70 


duties and fees of, 


96 


appointment and removal of, 


96 


authority of, 


97 


filing interpleader between persons 




claiming damages, 


311 


In Cities of 200,000. 




mayor appointing. 


403 


assistants. 


403 


appointment, 


403 


duties, 


403 


salaries. 


403 


fees collected by. 


403 


authority of, 


404 


In Cities of 50,000. 




appointment, 


491 


bond, 


491 


duties, 


491 


salary, 


491 


appointing deputy, 


491 


authority of, 


492 


In Cities of 35,000. 




appointment. 


560 


bond, 


660 


salary. 


560 


duties. 


560 


powers and duties of, 


561 


In Cities of 23,000. 




appointment, 


630 


bond, 


630 


salary. 


630 


duties. 


630 


authority of. 


631 



CITY BOARD OF EQUALIZATION, 

abolished, 88, 215 



CITY CHARTER, 
adoption of, . 

See Charter. 

CITY CLERK, 

not officer under state, 
as city officer, 



63 



-e to Pages."] 

CITY CLERK— Continued. 

duties of, 

fees for transcripts, 

duty to sign orders, 

duty to keep accounts, 

duty to make duplicate tax list, 

official bonds filed with, 

liability on bond of, 

assessing omitted taxable property, 

keeping record as to vacation of 

streets, etc., 
as clerk of board of public works, 
city treasurer settling with, 
procedure where treasurer settles 

with, 
issuing license, 
certifying tax levies, 
as clerk of council, 
recording ordinances, 
executive authority vested in. 



election of, 

qualifications of, 

appointing deputies, 

duty in police court, 

notifying officers elect, 

council electing, 

duties as clerk of council 

recording ordinances, 

powers vested in, 

deputies, 

duties, 

salary, 

fees, 

notifying officers elect, 

as clerk of council, 

authority vested in, 

election of, 

deputy, 

treasurer settling with, 

as elective officer, 

notifying officers elected, 

duty of, 

election of, 

term of, 

deputy of, 

duty of treasurer to settle with, 

duty to keep survey and plat, 

CITY COMMISSIONERS, 
circuit judge appointing, 
power in reference to streets, 
powers and authority of, 
reference to, 
disqualified by interest, 
waiver of objections to, 
duty of, 

notice to and meetings of, 
report by, 

notice of meetings of 
adjournments by, 
hearing and proceedings by, 
what damages assessable by, 
filing report with clerk, 
action oi council on report of. 



393, 



485, 555, 
485, 555, 



550, 



83 

83 

84 

85 

85 

103 

10-1 

215 

314 
335 
359 

359 
360 
362 
375 
376 
3r;3 
550 
393 
396 
458 
463 
467 
467 
468 
483 
485 
625 
625 
485 
532 
535 
618 
550 
555 
587 
598 
599 
602 
618 
618 
625 
654 
682 



39 
296 
296 
299 
300 
300- 
300 
300 
300 
301 
801 
302 
302 
303 
305 



960 


INDEX. 




[Beferences are to Pages.} 




CITY commissioners-Continued, i 


CITY ELECTIONS— Continued. 




effect of acceptance of report of, 


305! 


using machines in, 


668 


referring report back to, 


306 


electing school commissioners at, 


922 


objections to regularity of appoint- 




See Election. 




ment of, 


310 






objecting to competency of. 


310 


CITY ENGINEER, 




proceedings to vacate street. 


313 


removal from office, 


70 


report in vacation proceedings, 


315 


making map and profile of harbor, 


181 


to approve plats. 


367 


superintending harbor repairs. 


184 






mayor appointing, 


493 


CITY COMPTROLLER, 




salary of. 


493 


acting as mayor, 394 


,484 


powers and duties of. 


632 


See COMPTROLLEE. 




superintending paving by street rail- 








way, 


846 


CITY COUNCIL, 




See Civil Engineee. 




right to remove officers, 


68 






See Common Council. 




CITY EXPENDITURES, 








comptroller furnishing estimate of, 


487 


CITY COURT, 








mayor holding, 


75 


CITY FUNDS, 




election of judge. 


328 


comptroller investing, 


490 


commission to judge, 


328 






oath of judge. 


328 


CITY HOSPITAL, 




bond of judge, 


328 


superintendent of, 


444 


style and jurisdiction, 


329 






civil causes, when for trial, 


329 


CITY JUDGE, 




seal, 


329 


as city officer, 


66 


court of record, 


329 


when contract with is invalid, 


114 


effect of judgment. 


329 


contracting with city. 


330 


process and service. 


330 


fees of, 


332 


power of judge to make rules, 


330 


may practice law. 


332 


sittings of court. 


330 


See Police Judge. 




records. 


330 






transcript from, 


330 


CITY LICENSE, 




change of venue, 


331 


for sale of intoxicating liquor, 


129 


trial in, 


331 


comptroller issuing. 


490 


new trials in, 


331 






appeals. 


331 


CITY LIMITS, 




executions, 


331 


jurisdiction beyond in constructing 




marshal's and constable's duties, 


332 


levees, 


195 


judge's fees, 


332 


jurisdiction beyond, water, 


527 


;udgep^o tempore, 


332 


controlling cemeteries beyond, 


703 


; udge may practice law, 


332 


jurisdiction beyond, 


741 


mayor holding, 


552 


See Boundaries. 




officers of. 


620 






effect of judgments, 
seal of. 


620 
620 


CITY MARSHAL, 

See Marshal. 




, change of venue, 
appointment of judge, 
jurisdiction, ^ 


620 
620 
620 


CITY OF AURORA, 
charter construed. 


200 


original and concurrent jurisdiction 
limit of punishment, 
rules in. 


, 621 
621 
621 


CITY OF EVANSVILLE, 

salaries under charter of, 


114 


oaths, 

appeals from, 
judge pro tern., 


621 
621 
621 


CITY OF LAFAYETTE, 

charter construed. 


200 


See Police Coust. 




CITY OFFICERS, 




CITY DISPENSARY, 




number and names of. 


66 


appointing superintendent of, 


444 


when may appoint deputies. 


61 






right to remove. 


68 


CITY ELECTIONS, 




police officers are not, 


126 


law governing. 


70 


member of board of health as. 


147 


contests, 


598 


presumption in favor of action of. 


160 


when and how held, 


666 


See Officers. 





INDEX. 



961 



[Beferences are to Pages.'] 



CITY PROPERTY, 

control of council over, 115 

power to sell, 119 

liable for public improvement, 387 

authorizing sale of, 474 

power of council to protect, 537 

power to authorize sale of, 643 

CITY SANITARIAN, 

appointment of, 444 

CITY SEAL, 

duty to adopt, 112 

clerk shall keep, 396 

CITY SECURITIES, 
duty of comptroller in reference to, 401 

CITY TAX SALE, 

purchaser at, 213 

CITY TAXES, 

land sold for, 212 
basis of levy, 360, 361 

limit of levy, 361 

sale for, 593 

appraisement for, 656 

when delinquent, 688 

firemen exempt from, 744 
See Taxes. 

CITY TREASURER, 

when may appoint deputy, 68 
duty in matter of opening of street, 306 
collecting assessments for opening 

street, 307 

paying or tendering damages, 311 

place for tendering damages, 312 

to make settlement, 358 
procedure in settling with city clerk, 359 

as custodian of city bonds, 387 
comptroller examining accounts of, 490 

appointment, 517 

salary, 517 

oath, 517 

bond, 517 

account of moneys, 518 

salary and fees of, 518 
receiving unlawful compensation, 518 

abolishing ofiice, 587 

treasurer of county acting as, 587 

duty to deliver precepts, 588 
duty in reference to sale of bonds, 613 

office abolished, 654 

county treasurer acting as, 654 

settling with county treasurer, 654 

to deliver precepts, 655 

fees on tax sales, 688 

as treasurer of school board, 923 
See County Treasurer ; Treasurer. 

CITY WARRANT, 

as contract, 85 

attempt to set off taxes against, 85 
See Warrant. 

CiT. AND To.— 61 



CITY WORK-HOUSE, 

use of, 

See Work-House, 

CIVIL ACTION, 



886 



action for penalty is, 


79 


for violation of ordinance. 


781 


CIVIL CASES, 




right of trial by jury. 


27 


jurisdiction of city court in, 


329 


CIVIL CAUSES, 




when for trial in city court, 


329 


CIVIL ENGINEER, 




as city officer. 


m 


duties of, 


88 


appointment, 


405, 632 


powders and duties of. 


405 


certifying completion of street 


im- 


provement, 


504 


salary of. 


632 


See City Engineer. 





CIVIL JURISDICTION, 

of city court, 329 

CIVIL SERVICE, 

board of examiners for, 385 

rules and regulations for, 552 

CIVIL SERVICE AGENCY, 

examining board, 397 

CIVIL SERVICE RULES, 
power to adopt, 396 

CIVIL STATUTES, 
construction, 868 

CIVIL TOWNSHIP, 

not liable for teacher's salary, 909 

no authority to contract for school- 
house, 909 

CLAIMS, 
officers not to purchase, 373, 464, 533, 600 



allowance by towns, 

verification of, 

town trustees allowing, 

CLAIM DOCKET, 
clerk keeping, 

CLAIRVOYANTS, 
power to license and regulate, 

CLARKSVILLE, 

charter of, 

CLASS LEGISLATION, 
in taxation. 



674 
675 

776 



675 



165 



56 



46 



962 



INDEX. 



[Beferences are to Pages. 1 



CLEANING ALLEYS, 

power to contract for, 



733 



CLEANING STREET, 

contract for, 136^ 495 

power of city, 227 

^ assessments for, 435 

power of board of public works, 493 

poY^-er of board, 563 

power to contract for, 733 

CLERK, 

in election for incorporation of city, 63 
duties of, 98 

making up delinquent tax list, 102 

duty as to precept for assessment, 286 
city commissioners filing report with, 303 
duty when report of city commis- 
sioners filed, 306 
board of public works, 335 
of police board, 345, 350 
board of public works appointing, 

405, 492 
board of public safety, 437 

board of park commissioners select- 
ing, 447 
for board of public safety, - 512 
for departments, 556 
keeping claim docket, 675 
issuing precept, 726 
of town, bond, 758 
See City Clerk. 

CLERK OF CITY, 

duties of, 83 



CLERK OF COURT, 

duties of. 



622 



CLERK OF TOWN, 

administering oaths and affirmations, 675 



CLERK'S BOND, 

liability on, 



104 



CLERK'S RECORD, 
effect of where town becomes a city, 64 

CLOSETS, 

duty of railway to provide, 872 



COACHES, 

city regulating, 

COAL VAULT, 
under sidewalk, 

COASTING ON STREETS, 
liability for, 

COLLATERAL ATTACK, 
on ordinances, 
by injunction, 



128 



241 



246 



124 
160, 293, 807 



COLLATERAL ATTACK— Continued. 

on drainage assessment, 257 

on street opening proceedings, 301 
on annexation proceedings, 

318, 322, 324, 818 
on judgment of city court, 330 
on proceedings to establish water- 
works, 692 
on street improvement petition, 709 
on assessment, 709, 720 
on improvements, 729 
when attack by injunction is, 730 
on jurisdiction, 749 
on appointment of inspectors, 752 
on acts of town trustees, 753 
on additions to town, 786 

COLLATERAL PROCEEDINGS, 

irregularities not reached by, 708 

COLLATERAL SEWERS, 

paying for, 186 

COLLECTING ASSESSMENTS, 

method of, 725 

COLLECTION, 

See City Treasurer. 

COLLECTION OF ASSESSMENTS, 

for opening of street, 307 

report of, 307 



COLLECTION OF TAXES, 
duty of treasurer, 
duty of county treasurer, 
how made, 

COLLISIONS, 

in public streets, 

COLLUSION, 
in letting public work, 
in letting contracts, 

COLORED CHILDREN, 
separate schools for. 



588 
590 
686 



245 



408 
565 



32 



COMBINATION, 
among petitioners for street improve- 
ments, 275 

COMBUSTIBLES, 

regulating use of, 378 

regulating storage of, ^ 470, 605 

power to regulate placing of, 538 

COMMERCE, 
power of congress to regulate, 1 

COMMERCIAL PAPER, 
bonds as, 171, 777 

aid bonds as, 198 



INDEX. 



963 



[Beferences a 

COMMISSION, 
to city judge, 328 

heads of departments not to receive, 487 
officers not to receive, 556 

treasurer entitled to on sales, 728 

COMMISSIONERS, 

on police board, 337 

to appraise for water-works, 691 

condemning for parks, 741 

duty in reference to opening street, 807 
See Sinking Fund Commissioners ; Board 
OF Public Safety; City Commissioners. 

COMMISSIONERS OF DRAINAGE, 

collecting assessments, 190 

COMMISSIONER'S REPORT, 

action on, 809 

parol evidence to show acceptance of, 809 

COMMITMENT, 
for failure to pay judgment, 554, 624 

to work-bouse, 883 

COMMON CARRIER, 
street railroad company as, 271 

telephone company as, 863 

COMMON LAW, 
rigbt to search warrant at, 24 

COMMON COUNCIL, 

creating wards and voting precincts, 64 

duties of in towns, 65 

filling vacancies in office, 72 

duty of clerk to attend meetings of, 84 

parol evidence to show acts of, 84 

appointing assessor, 87 

changing grade of street, 91 

control over street commissioner, 92 

control over city attorney, 96 

employing special counsel, 97 

In Cities. 

meetings of, 106 

president pro tempore of, 106 

who constitutes, 106 

stated and special meetings, 107 

quorum of, 107 

electing officers, • 108 

removing officers, 111 

not a judicial body, 112 

adopting city seal, 112 

power over streams and ferries, 112 

not to be interested in city contracts, 113 

114 
115 
115 

164 
165 

165 



duty to fix salaries, 

control of finances, 

general powers, 

presumption as to regularity of pro- 
ceedings of, 119, 

power to punish contempts, 

power to license persons engaged in 
business, 

prescribing grades for railroad tracks, 165 

regulating sewer, gas and water con- 
nections, 166 



re to Pages.'] 

COMMON COUNCIL— Continued. 

authorizing pipes to be laid in street, 167 

voting to sell real estate, 167 

issuing water-works bonds, 168 

power in making loans, . 170 

issuing funding bonds, 174 

limited as to tax levy, 175 
electing sinking fund commissioners, 176 

constructing levees, 192 
action on petition to subscribe for 

stock, 198 
effect of action on petition to grant 

aid, 200 
dutv in reference to petition to grant 

aid, 202 
power to make by-laws and ordi- 
nances, 204 
power to levy taxes.. 205 
assisting in equalization of taxes, 211 
levying sinking fund tax, 214 
power over streets, highways, etc., 216 
directing improvement of street, 274 
members not personally liable to con- 
tractor, 278 
mandamus as remedy against, 284 
proceedings in for opening of street, 299 
mine pro tunc entry in minutes of, 299 
action on report of city commission- 
ers, 305 
authority to vacate streets, 312 
deciding as to expediency of vacat- 
ing street, 313 
acting on report in street vacation 

matter, 314 
referring back report in vacation 

proceedings, 314 

removing obstructions from streets, 315 

annexing platted lots, 317 
filling vacancy in board of public 

works, 333 

selecting members of police board, 338 

appointing park commissioners, 355 

levying tax for parks, 356 

In Cities of 100,000. 
legislative authority, 373 
dividing city into wards, 373 
election of councilmen, 374 
qualification of councilmen, 374 
vacancy in office of councilman, 374 
expulsion of councilmen, 374 
meetings, 374 
presiding officers, 374 
meetings public, 375 
clerk of council, 375 
passage of ordinances, 375 
publication of penal ordinances, 375 
approval or veto of ordinances, 376 
record of ordinances, 376 
yeas and nays, 376 
powers and duties of, 377 
power and control over streets, 379 
licensing persons engaged in differ- 
ent occupations, 380 



964 



INDEX. 



\^Beferences a 
Continued. 



COMMON COUNCIL 

control over morals, 
control over drainage, 
power over railroads, 
power over public enterprises, 
power to declare nuisances, 
penalties, limit of, 
imprisonment for not paying fines, 
duties of departments, 
charges against officers, 
trial of officers, 

trial of charges against officers, 
vote to remove officers, 
taxes, levy of, 
loans, 

bonds, issue and sale, 
temporary loans, 
refunding bonds, 
warrants on treasurer, 
interest on loans, 
failure to levy tax, 
corporate boundaries, 
annexation of lands, 
appeal from annexation proceedings, 
parts of city or town not to be an- 
nexed, 
debts on annexation, 
disannexing territory, 
fixing rate of taxation, 
comptroller reporting to, 

In Cities of 50,000, 

legislative authority, 
w^ards, 

councilmen, election, 
qualifications of councilmen, 
expulsion of councilmen, 
meetings of, 
quorum, 

passage of ordinances, 466. 

president of, 
electing city clerk, 
meetings public, 
duties of clerk, 
adopting rules, 
signature to ordinance, 
publication of ordinances, 
approval or veto of ordinances, 
recording of ordinances, 
general powers of, 
penalty for violation of ordinances, 
imprisonment, providing for, 
executive and administrative func- 
tions, 
power of to declare nuisances, 
investigating departments, 
impeaching and removal of officers, 
taxation, 

borrowing money, 
bonds, interest, sale, 
temporary loans, 
refunding bonds, 
warrants, when not drawn, 
interest on bonds, 



381 
381 
382 
382 
383 
385 
385 
385 
385 
385 
386 
386 
387 
387 
387 
388 
388 
388 
388 
389 
389 
389 
389 

391 
391 
392 
399 
400 



465 
465 
466 
466 
466 
466 
466 
467 
467 
467 
467 
467 
467 
467 
467 
468 
468 
469 
476 
476 

476 
476 
477 
478 
478 
478 
479 
479 
479 
479 
480 



re to Pages.'\ 
COMMON COUNCIL— Continued. 



appropriations. 


480 


tax levy, continuous, 


480 


boundaries, evidence of 


480 


annexation proceedings, 


480 


remonstrance against annexation, 


480 


part of city or town not to be an- 




nexed, 


482 


disannexing territory. 


482 


In Cities of 35,000. 




legislative authority, 


534 


making wards, 


534 


councilmen. 


534 


meetings of, 


535 


quorum, 


535 


mayor to preside. 


535 


meetings public, 


535 


duty of city clerk, 


535 


appropriation ordinances, 


535 


passage of ordinances, 


535 


publication of ordinances, 


536 


approval of ordinances, 


536 


veto of ordinances, 


537 


recording of ordinances. 


537 


powers of generally. 


537 


penalties imposed, 


543 


imprisonment. 


543 


executive and administrative duties 


, 544 


investigating departments, 


544 


taxation, 


545 


loans, limit. 


545 


bonds, issue and sale. 


545 


temporary loans, 545 


,546 


refunding bonds. 


546 


warrants, when not to issue. 


546 


continuation of appropriations and 




tax levy, 


547 


annexation by, 547 


,548 


disannexing territory, 


549 


duty of mayor to communicate with 


551 


In Cities of 23,000, 




legislative authority. 


601 


creating wards, 


601 


terms of councilmen, 


601 


qualifications of council. 


602 


expulsion of councilmen, 


602 


meetings of, 


602 


quorum, 


602 


mayor to preside, 


602 


duty of city clerk, 
signing ordinances. 


602 


602 


appropriations, 


602 


powers of, 


604 


providing seal. 


004 


executive and administrative duties 


,611 


investigating departments, 


612 


impeachment of officers, 


612 


removal of officers, 


612 


taxation, 


613 


loans by. 


613 


issuing bonds, 


613 



INDEX. 



965 



\^Beferences are to Pages."] 



COMMON COUNCIL— Continued. 

temporary loans by, 614 

issuing refunding bonds, 614 

Tvhen warrants not to be issued, 614 

interest on bonds, 614 
continuation of appropriations and 

tax levy, 614 
annexation by, 614 
duty of mayor to communicate with, 619 
power in opening streets, etc., 639 
providing for removal of garbage, 670 
providing for planting shade trees, 671 
power to direct survey and plat, 681 
passing on plats of additions, 682 
electing water- works trustees, 693 
control of water-works, 695 
condemning land for sewer, 701 
removing dead to new cemetery, 705 
petitioning for street improvement, 707 
hearing objections to assessments, 718 
power as to lights, 735 
condemning for parks, 741 
licensing and regulating pawnbrok- 
ers, 743 
vacating streets and alleys for union 

railway company, 833 
requiring railroads to place lights at 

street crossings, 835 

granting franchise to street railways, 843 

electing school trustees, 909 

COMMON LAW DEDICATION, 

what constitutes, 218 

COMMON PROSTITUTES, 

power to punish, 135 

COMMUNITY IN GENERAL, 

definition of, 265 

COMPETITION, 

for use of streets by street railway, 851 

COMPENSATION, 
for taking of property, 16 
for services and property taken, 27 
for a taking under the eminent do- 
main, 28 
for taking of private property, 29 
of city marshal, 95 
of sinking fund commissioners, 178 
where land taken for street, 297 
payment or tender, 312 
for opening or vacation of street, 316 
of policemen and officers, 344 
of police officers, 350 
of park commissioners, 357 
of auditor and treasurer for collect- 
ing city taxes, 367 
of deputy marshal, 761 
where interurban line uses track of 
street railway company, 838 
See Damages ; Salakies. 



COMPLAINT, 
sufficiency of in action for penalty, 79 
in suit for penalty, 79 

in suit for violating town ordinance, 79 
when not necessary to file copy of 

ordinance with, 79 

for damages for change of grade of 

street, 89 

ordinance as a part of, 151 

sufficiency of to enjoin collection of 

taxes, 210 

for injuries caused by defective 

street, 234, 237 

for injury on defective sidewalk, 2 ;7 
on account of obstructed sidewalk, 244 
for injury on bridge, 250 

for damages by building of embank- 
ment, 257 
sufficiency of for injunction, 258 
to compel railroad to construct cross- 
ings, 267 
averment of negligence in, 273 
in suit for injunction, 303 
to foreclose assessment, 417, 721, 795 
for foreclosure of assessment, 426 
in suits by city, 553 
to foreclose improvement bonds, 715 
sufficiency of to foreclose assessment, 722 
sufficiency of by town, 761 
averment of in suit for violating or- 
dinance, 781 
ordinance as exhibit, 790 
averments to collect assessments, 794 
exhibits to, 795 
testing by demurrer, 795 
sufficient averment of negligence in, 800 
on account of defects in street, 801 
to require railroad to construct cross- 
ings, 831 
for injury to passenger on street rail- 
way, 854 

COMPTROLLER, 

Li Cities of 100,000. 

appointment of, 400 

salary of, 400 

duties of, 400 

appointing deputy, 400, 402 

settling with treasurer, 402 

In Cities of 30,000. 
examining heads of departments, 487 
furnishing estimate of city expen- 
ditures, 487 
appointment of, 488 
salarv of, 488 
bond of, 488 
duties of, 488 
deputy comptroller, 491 
wharfmaster reporting to, 529 

In Cities of 35,000. 
acting as mayor, 551 

turning fines and penalties over to, 552 



966 



INDEX. 



\_Beferences are to Pages.'] 



COMPTROLLER— Continued. 



right to examine persons, 


557 


appointment, 


558 


salary, 


558 


deputy. 


558 


duties of, 


558 


power to examine persons, 


559 


In Cities of 23,000. 




acting as mayor, 


618 


furnishing estimate of expenditures 


627 


appointment, 


628 


salary. 


628 


deputy, 


628 


duties. 


628 


examining treasurer's accounts, 


630 


as auditor of school board. 


924 


issues warrants, 


924 


illegal warrants, 


924 



COMPROMISES, 

implied power of city to make, 117 

CONCURRENT REMEDIES, 

effect of adoption of one, '204 

CONCURRENT JURISDICTION, 

in police court, 621 

against nuisances, 764 
See Jurisdiction. 

CONDEMNATION, 

for public use, effect on contract, 13 

for harbors, 182 

in constructing levees, 195 

for street improvements, 217 

by board of public works, 409 

list of owners of property taken, 409 
assessment of damages and benefits, 410 
minors and insane persons, 

410, 498, 567, 637 

to secure right of way for sewer, 430 
for parks, 451, 452 

notice of, 496 

remonstrance against, 496 

list of owners affected, 497 

damages and benefits, 497 

remonstrance, appeal, 498 

how appeal taken, 498 

benefits, lien, 499 

assessment roll, 499 

when assessments due, 499 

foreclosing assessment, 499 

damages, payment, 499 

power of board of public works, 562 

appropriation of property, 566 

roll of owners of property, 566 

award of damages, 566 
notice, 566, 636 

remonstrance, 567 

appeal in, 567 
city paying damages, 568, 569 

appropriation of property, 635 



CONDEMNATION— Continued. 

roll of owners of property, 636 

awards and assessments, 636 

remonstrance, 637 

how appeal taken, 637 

assessment of benefits, 637 

collection of benefits, 638 

when benefits due, 638 

pajnnent of damages, 638 

for water-works, 691 

for sewers, 701 

of land for cemetery, 705 

for lighting purposes, 739 

for parks, 740 

vahdity of, 807 

award of damages, 809 

by union railway company, 833 

of street railway plant, 845 

of street railway property, 852 

securing water privileges by, 862 
See Appropriation. 

CONDEMNATION FOR PARKS, 

payment of damages, 742 

action on report, 742 

appeal from, 742 
See Parks. 

CONDEMNATION PROCEEDINGS, 

appeal in, 182, 411 

remonstrances, 411 

roll of assessments, 411 

liens, 411 

collection of assessments, 411 

demand for assessment, 412 

what damages paid by city, 412 

certificate of damages, 412 

how appeal in taken, 568 

judgment on appeal, 568 

assessment of benefits, 568 

collecting benefits, 568 

CONDITIONS, 

effect of in railway aid subscription, 199 
attaching to dedication, 222, 812 

in grant to railroad to use streets, 262 

effect of in dedication, 264 

to consolidation of city and town, 676 

use of street railway track on, 837 

imposing on street railway, 846 

CONDUCT, 

dedication implied from, 219 

intent to dedicate inferred from, 219 

CONDUCTOR, 

obstructing highway with train, 869 

CONFESSION OF JUDGMENT, 

in city court, 329 

CONFLICT OF ORDINANCES, 

effect of, 737 



INDEX. 



967 



IBeferences are to Pages."] 



CONGRESS, 

powers of, 1 

controlling- telegraph companies, 4 

control over navigable waters, 6 
when jurisdiction over interstate 

commerce is exclusive, 7 

no power over intrastate commerce, 7 

COXXECTIOXS, 

street railways making, 856 

duty of telephone company as to, 864 

CONSENT, 

can not confer jurisdiction, 80 

CONSEQUENTIAL DAMAGES, 

from improvement of street, 254 

from change of street grade, 257 

CONSEEYATORS OF THE PEACE, 

judicial officers as, 44 

CONSIDERATION, 

for city warrant, 85 

recovering v\'here bonds are void, 173 
for ordinance requiring street rail- 
way to pave, 841 



CONSOLIDATED CORPORATION, 

debts and liabilities, 

CONSOLIDATION, ^ 

of municipalities, 
of street railv/ays, 
with foreign street railroad, 
See Annexation. 

CONSOLIDATION OF CITIES, 

ballots in election for. 



548 



392 

855 
857 



677 



CONSOLIDATION OF STREET RAIL- 
WAYS, 

resolution recorded, 856 

connections, 856 

concerning completion of lines, 856 

CONSTABULARY, 

how appointed, 39 

appointment of, 54 

CONSTABLES, 

marshal has powers of, 93 

marshal entitled to same fees as, 93 

act throughout county, 93 

citizens to aid, 93 

fees of, 93 

fees in city court, 332 
police officers possessing powers of, 346 

court bailiff has powers of, 623 

policemen possessing powers of, 650 

CONSTITUTION, 

when takes effect, 56 



CONSTITUTIONAL AMENDMENTS, 

intention of, 15 

CONSTITUTIONAL CONSTRUCTION, 

statute part valid and part void, 57 

CONSTITUTIONAL LAW, 
restrictions upon the states, 8 
granting exclusive privileges, 12 
privileges and immunities of citizens, 15 
construction of fourteenth amend- 
ment, 15 
discriminating ordinances, 20 
legislation concerning intoxicants, 22 
unreasonable searches and seizures 

prohibited, 24 
courts to be open, 25 
no person to be twice in jeopardy, 26 
excessive bail and punishment pro- 
hibited, 26 
bailable offenses, 27 
trial by jury in civil cases, 27 
compensation for services and prop- 
erty, 27 
no imprisonment for debt, 31 
privileges and immunities equal, 31 
law impairing contracts, 33 
qualifications of electors, 35 
laws to be general, 42 
system of taxation, 46 
limit of indebtedness, 49 
selection of public officers, 53 
statute part valid and part void, 57 
conferring judicial powers upon 

mayor, 77 

title to ordinances, 120 

municipal taxation, 206 

exempting widows from taxation, 207 
assessing land not bordering on 

street, 279 
act authorizing appointment of city 

commissioners, 296 
metropolitan police act, 338, 344 

general law, 370 

annexation proceedings, 391 

statute authorizing assessments, 415 

tenure of office, 446 

creation of police court, 456 

limit of indebtedness, 613 
proceedings to establish water- works, 692 

taking land for cemetery, 705 

contracting for fights, 735 

notice of sewer assessments, 820 

enforcing sewer assessment, 823 

three-cent fare act, 843 

signals at crossings, 870 

disposing of fines for lewdness, 887 

firemen's pension fund, 8V)4 

special tax for schools, 914 

CONSTITUTIONAL LIMITATION, 
upon indebtedness, 138, 173, 175, 47S 

on issue of funding bonds, 672 

improvement bonds, 725 
See Indebtedness. 



968 



INDEX, 



[Befereiices are to Pages.'] 



CONSTITUTIONAL QUESTION, 

waiver of, 

CONSTRUCTION, 
of penal ordinances, 
of municipal charter, 



715 



80 
369 



CONSTRUCTION OF CHARTER, 

rules for, 61, 461, 530, 597, 747 



CONSTRUCTION OF DOCKS, 

by city. 



183 



CONSTRUCTION OF ORDINANCES, 

rule for, 81, 121 



CONSTRUCTION OF PLAT, 

rules for, 

CONSTRUCTION OF SEWERS, 
condemning land for, 
negligence in, 

See Sewers. 



810 



701 
820 



CONSTRUCTION OF STATUTES, 
drainage statutes liberally construed, 187 

exempting property from taxation, 207 

authorizing assessments, 282 

construing all parts together, 719 

authorizing town tax, 783 

legislative intention, 865 

CONSTRUCTIVE NOTICE, 
of defects in street, 232, 233, 235, 800 



length of time, 
question of fact. 


801 
801 


CONTAGIOUS DISEASES, 
confining persons who have, 
report of, 


605 
746 


CONTEMPT, 
who may punish for, 
power to punish, 165 
punishing witnesses for, 386 
power of council to punish, 
refusing to appear before council, 
common council punishing. 


40 
612 
477 
469 
544 
604 


CONTEST, 
of municipal elections. 


71 



CONTESTS OF ELECTIONS, 

law governing, 

in municipal elections, 

appeal in, 

CONTIGUOUS LANDS, 
extending boundaries of city over. 



598 
666 



320 



CONTIGUOUS TERRITORY, 

annexation of, 317, 318, 389, 615 

question of fact as to what is, 818 



CONTINUING POWER, 

power to aid railroads is, 197 

to improve streets, 253 

to construct sewers, 429, 700 

CONTRACTS, 
validity of ordinance impairing obli- 
gation of, " 8 
municipal charters are not, 8 
municipal franchises are, 9 
valid when made can not be after- 
ward impaired, 10 
impairing obligation of ultra vires, 10 
ordinance as, 11 
subject to exercise of power of emi- 
nent domain, 13 
not impaired by exercise of police 

power, 15 

law impairing obligation of is void, 33 

liquor license is not, 34 

authority of mayor, 76 

citj^ warrant as, 85 
common council not to be interested 

in, 113 
with officers are void, 113, 372 
power of council to make, 115 
how they may be made, 117 
limit of power to make, ; 118 
ratification of, 118 
notice of termination of, 118 
for lighting streets, 140 
liability of corporation on, - 161 
for construction of harbor, 180 
for constructing levee, 194 
ultra vires, 249 
street railroad charter as, ^ 271 
improvements without letting, 275 
how executed, 277 
officer can not make with city, 277 
city may change, 277 
assignment of, 278 
board of public works directing pay- 
ment on, 335 
mayor to sign, 394 
limited to appropriations, 399 
attempted ratification of void one, 400 
power of board of public works to 

make, 406 

for sprinkling and sweeping, 434 
officers not to be interested in, 

464, 533, 600, 754 

mayor signing, 484 

notice of letting, 496 

for sprinkling streets, 511 

when bind city, 557, 627 

letting for public work, 565 

letting, 565 

notice, 565 

bids, 565 

collusion, 565 
for sprinkling and sweeping streets, 

581, 648 

for lamp posts, 582. 



INDEX. 



969 



\_Beferences are to Pages. 1 



CONTKACTS— Continued. 
penalty for unauthorized, 627 
receiving bids on, 634 
validity of with water-works, 691 
street improvement not in strict con- 
formity with, 729 
granting exclusive privilege, validity, 736 
partial annulment of, 737 
effect on dissolution of town, 757 
officers' are void, 763 
letting for electric light plant, 773 
voting on ordinances for, 774 
for street improvement, notice of 

letting, 792 
with town officers void, 793, 879 

with street railway, 846 
a crime for officers to be interested 

in, 878 

reforming on ground of mistake, 908 

CONTRACT FOR WORK, 

board of public works making, 634 

CONTRACT RIGHTS, 

as to use of street, 226 

CONTRACTOR, 
liability for acts of in change of grade, 91 
negligence of in building sewer, 155 
trespass upon abutting lands, 162 
giving bond for construction of har- 
bor, 181 
when subrogated to lien, 194 
jointly liable with city for defects in 

street, 238 
negligence of, 238 
liability for torts of, 238 
right to possession of street for im- 
provement, 256 
lien of, 281, 723 
paying on estimates, 284 
effect of variance in names of, 289 
affidavit to assessment roll, 418 
issuing bonds to, 424 
liability of city to, 602 
duty to employ residents, 565 
requiring them to give bond, 665 
liability of city to, 671 
affidavit that he has performed work, 672 
issuing bonds directly to, 677, 645 
lien for making improvement, 713 
requiring bonds from, 715 
city advancing money to, 716 
right to foreclose assessment, 719 
partial recovery by, 723 
widening street, " 724 
issuing certificates to, 725 
affidavit by that assessment unpaid, 726 
to ratify estimates of record, 730 
receipting record, 732 
paying on estimates, 794 
liability for acts of, 800 



CONTRIBUTORY NEGLIGENCE, 

where bad sewers constructed, 154 

in injuries on defective streets, 235 

burden of proof, 239 

knowledge of defect, 240 
using defective sidewalk, 240, 242 
in driving against obstruction in 

street, 247 

in using bridge, 249 
what sufficient to show freedom from, 251 

in using defective sidewalk, 251 
special verdict showing freedom 

from, 252 

pleading freedom from, 252 

damage by drainage, 258 

at railroad crossing, 269 

in crossing street railroad track, 270 

of street railroad passengers, 271 

finding as to in special verdict, 273 
knowledge of obstruction in street, 

802, 803 

burden of showing freedom from, 803 

effect of that of third person, 804 

master and servant, 804 

in damages by sewer, 820 

relying on promise to repair, 821 

at railroad crossing, 831 
See Negligence. 

CONTRACTOR'S AFFIDAVIT, 

for precept, 

CONVERSION, 
of impounded animal, 



CONVEYANCES, 

for parks, 

COPY OF ORDINANCE, 
when not necessary in pleading, 
See Exhibits. 

CORNICE, 

person injured by falling, 

CORPORATE BOUNDARIES, 
extending drains beyond, 
power of council over, 

See BouNDAKiES. 

CORPORATE ELECTION, 

notice of, 

CORPORATE LIMITS, 

jurisdiction bevond, 

203, 378, 406, 469, 538, 605, 
jurisdiction beyond in constructing 

levees, 
presumption that street is in, 
highway running along, 
school-house outside of, 

See Boundaries. 



289 

135 

460 

79 

134 



167 
389 



752 



633 

195 
710 
827 
914 



970 



INDEX. 



[Beferences are to Pages^l 



CORPORATE name; 
of town trustees, 



CORPORATE ORGANIZATION, 

when necessary to aver, 

CORPORATE PROPERTY, 

right to alienate, 
on consolidation, 

See Public Pkopeety. 



119 

548 



CORPORATE SEAL, 

attaching to precept for assessment, 285 

power of council to provide, 377 
common council providing, 469, 537, 604 

See Seal. 

CORPORATION STOCK, 

taxation of, 208 

authority to hold, 633 

where taxable, ' 685 
See Stock. 

CORPORATIONS, 

regulating use of streets by, 12 
when not regarded as citizens, 14, 16 

as persons, 16 

power to regulate existing, 40 

not to be created by special act, 48 

power to create and regulate, 48 

what constitute, 61 

contracts of, nature of, 118 
exclusive privileges can not be 

granted to, 138 
not proper to grant exclusive privi- 
leges to, 140 
liability on torts and on contracts, 161 
cities taking stock in, 171 
suing upon tort or on contract, 227 
occupying streets under franchises, 227 
consolidation of, 392 
power to hold stock in, 494 
suits against, 653 
service of summons on, 623 
trustees are not, 762 
as trustee for public, 813 
water companies, 861 
prosecuting for obstructing street, 868 
taking stock in library association, 928 

CO-SERVANTS, 

negligence of, 238 

COSTS, 
city liable for, 80 
when city not liable for, 96 
where city is a party, 97 
of constructing sewers, 185 
how apportioned for street improve- 
ment, 279 
of street improvement, apportioning, 280 
of improvement, how paid, 285 
on sale under precept, 287 
on appeal from precept, 293 



COSTS— Continued. 

'on dismissal of proceedings, 310 

on appeal, 311 

of vacation of street, 813 

on appeal from city court, 331 

of plats, 368 
on appeal in annexation proceedings, 390 

effect of tender on, 412 

of constructing main sewers, 430 

in annexation proceedings, 481, 548 

of cleaning and repairing streets, 496 

in condemnation proceedings, 499 

on foreclosure of assessment, 507 

on foreclosure of street assessment, 576 
in suit to foreclose improvement 

bonds, 578 
of sewers, how paid, 580 
on appeal in condemnation proceed- 
ings, ' 616 

COSTS OF IMPROVEMENT, 



apportionment of, 414, 793 


assessing against abutting owner. 


415 


how collected, 


794 


COSTS OF SEWERS, 




how paid, 


429 


assessment for. 


509 


apportionment of. 


822 


collection of, 


822 


penalty for non-payment, 


822 


COUNCIL, 




See Common Council. 




COUNCIL AND MAYOR, 




relative powers of. 


; 278 


COUNCILMAN, 




as city officer. 


66 


term of office. 


66 


moving into other ward, 


68 


when not liable for bis acts, 


69 


number and selection of. 


72 


liability of. 


106 


office as lucrative, 


107 


when disqualified to act,, 


107 


effect of notice to, - ' 


107 


interested in contract,' 


113 


notice to is notice to city. 


149 


as stockholder in railroad, effect. 


198 


notice to of defective street. 


233 


as fire warden, 


[325 


In Cities of 100,000. 




election of. 


374 


qualifications of. 


374 


expulsion of, 


374 


In Cities of 50,000, 




election of, 


466 


qualifications of, 


466 


vacancy in. 


466 


expulsion of, 


466 



INDEX. 



971 



\_Beferences are to Pages.'] 



COUXCILMAN— CoxTiNUED. 




In Cities of 35,000. 




election of, 


534 


terms of, 


534 


qaalifications of, 


534 


expulsion of, 


534 


In Cities of 23,000. 




as elective officer, 


598 


election of, 


601 


terms of. 


601 


qualifications of. 


602 


expulsion of, 


602 


COUNSEL, 




po^Yer of town to employ. 


760 


power of town trustees to employ, 


762 


See City Attorney. 





COUNTERCLAIM, 

as defense to street improvement, 721 
not proper in suit to foreclose assess- 
ment, 427 

COUNTY, 

constables act throughout, 93 

a taxing district, 209 

expense to of collecting city taxes, 367 
liability for street improvement 

around square, 795 

donation by to state university, 917 

COUNTY AUDITOR, 

certifying tax levies to, 362 

settlement with, 363 

duty as to delinquent tax, 365 

when county treasurer to settle with, 365 

returning delinquent lands, 366 
compensation for collecting city 

taxes, 367 
duty in reference to delinquencies 

in assessments, 423 
dutv in reference to taxes, 589, 656, 685 
salary of, 594, 661 
certifying delinquencies on bonds to, 644 
making up delinquent list of taxes, 659 
duty as to delinquent tax list, 660 
issuing license to soldier or sailor, 670 
duty on appeal in annexation pro- 
ceedings, 679 
duty in regard to town taxation, 785 
town trustees delivering tax dupli- 
cate to, 786 
notice to highway viewers, 826' 

COUNTY BOARD OF COMMISSION- 
ERS, 

attempt to compel them to build 

bridge, 148 

mandamus to compel them to build 

bridge, 249 

annexing territory, 320 

jurisdiction to annex territory, 321 



COUNTY BOARD OF COMMISSION- 
ERS — Continued. 

proceedings by to annex territory, 323 
appeal from in annexation proceed- 
ing's, 679, 819 
discretion in annexation proceedings, 679 
conveying cemetery to town or city, 703 
applying to for incorporation of town, 748 
hearing and order in matter of in- 
corporation of town, 748 
no power to open highway in town, 806 
vacation proceedings before, 815 
dedicating public square to school 

purposes, 816 

duty in annexation proceedings, 819 

jurisdiction to establish highv/ays, 827 
granting highways to street railway, 853 
establisliing work-house, 883 

COUNTY BOARD OF HEALTH, 

records of, 671 

See Board of Health and Charities. 



COUNTY BOARDS OF REVIEW, 

not controllable by the courts, 



44 



COUNTY BRIDGE, 

acceptance by city, 

COUNTY CLERK, 

paying damages to, 



148, 248 



311 



COUNTY COMMISSIONERS, 

See County Board of Commissioners. 

COUNTY FUNDS, 

treasurer loaning, 442, 875 

COUNTY JAIL, 
boarding prisoners in, 669 

COUNTY LIBRARY, 
books and property of, 
care and maintenance of, 
property listed and labeled, 
loan of library fund, 
property reclaimed. 

See Libraries. 

COUNTY PHYSICIAN, 
duties of, 

COUNTY RECORDER, 

recording plats, 

COUNTY SEAT, 
validitv of act for removal of, 41 



933 
933 
933 
.933 
933 



885 



683 



COUNTY TREASURER, 

acting as city treasurer, 99, 358, 442, 587 
collecting levee assessments, 195 

duties of"^ 358 

bond of, 35S 

notice in reference to tax duplicate, 362 



972 



INDEX. 



\_Beferences are to Pages.'] 



COUNTY TREASUEER— Continued. 
settling with county auditor, 363 
settling monthly with school com- 
missioners, 364 
credit for school taxes, 364 
when to make tax settlement, 365 
compensation for collecting city 

taxes, ' 367 

loaning county funds, 442 
salary of 443, 594, 661 

settlement by, 591 

sale by to pay assessments, 644 

acting as city treasurer, 654 

duties of, 654 

notice by in reference to taxes, 657 

duty of as to taxes, 657 

settlement by, 658 
disposing of surplus gravel road or 

railroad aid tax, 688 

collecting town taxes, 787 

loaning county funds, 875 

COUPONS, 
to street improvement bonds, 421, 642 

on bonds, 778 

COURTS, 

required to be open, 25 
controlling discretion, 116 
will not control discretion, 140, 735 
do not interfere to control discre- 
tion, 396 
police matron to attend, 889 
See City Court ; Police Couet. 



COURT OF RECORD, 
city court is, 

COURT SEAL, 
for city court, 



329 



620 



COVERTURE, 
no defense to local assessment, 283 

CREDIT, 

purchasing real estate on, 163 

city lending to railroad company, 196 



CREDITORS, 
rights where street railway sold, 



850 



CRIMES AND MISDEMEANORS, 

duty of marshal in reference to, 92 

jurisdiction of mayor over, 652 

dut}^ of policemen to prevent, 585 
crimes not punishable by city or 

town, 866 

driving on sidewalk, 866 

misdemeanor defined, 866 

vehicles not to stand on street, 866 

obstructing highway, 867, 869 

obstructing highway with cars, 868 

railway failing to give signals, 869 



CRIMES AND MISDEMEANORS— Con- 
tinued. 
signals at crossings, 870 

penalty to school fund, 870 

penalty for failure to give signals, 871 
suits for, 871 

damages, 871 

railroad company to destroy weeds 

and thistles, 871 

failure, action of debt, 872 

waiting-rooms, 872 

penalty, 872, 873 

waiting-rooms and closets, 872 

street railway prohibited in Monu- 
ment place, 873 
vestibule street cars, 873 
penalty for selling or offering to sell 

vote, 873 

stealing public records, 874 

officer stealing or destroying records, 874 
altering records, 874 

embezzlement of public funds, 874, 876 
embezzlement by officers, 875 

embezzlement by treasurers, 876 

bribery of public officers, 877 

bribery of officer, 877 

presenting false claim, 878 

officer acting without qualifying, 878 
officer interested in public contracts, 878 
breaking quorum in common council, 879 
injuring telegraph or telephone poles 

or wires, 879 

telephone disclosure, 880 

not providing fire escape, 880 

not providing outswinging doors, 880 
running horses in towns, 880 

interfering with electric plants, 881 

altering gas connections, 881 

making gas connections without con- 
sent, 881 
refusal to deliver gas mixers, 881 
setting fire to gas, 882 
penalty, 882 
preventing waste of gas, 882 
use of jumbo burners, 882 



CRIMINAL ACTIONS, 
parties not required to produce 
papers in, 

CRIMINAL CASE, 
person not compelled to testify 

against himself, 
jurisdiction of city courts in, 

CRIMINAL MATTERS, 
duty of mayor in reference to, 

CRIMINAL OFFENSE, 

when ordinance does not reach, 

CRIMINAL PROSECUTIONS, 
punishing same offense twice. 



24 



26 
329 



75 

111 

26 



INDEX. 



973 



CRIMIXAL STATUTES, 

construction, 

CROSSINGS, 
duty to keep clear and safe, 
duty of railroad company at, 
duty to maintain flagmen at, 
power to establish and construct 
made by citizen, 
when dangerous, 

CRUELTY TO ANIMALS, 

power of council to prevent, 

CRYING OF GOODS, 
power of city to regulate, 



CULVERT, 

damages by, 

negligence in constructing, 

railroads constructing in street 



[Beferences are to Pages."] 

DAMAGES— Continued. 
agreement as to in drainage proceed- 
ings, 191 
for appropriation of land, 218 
caused by firing explosives, 237 
measure of for personal injury, 243 
from improvement of street, 254 
successive actions for, 254 
for interfering with contractor, 258 
for obstructing natural water-course, 258 
for obstruction of street, 260 
by locating railroad in street, 262 
where railroad is located in street, 265 
abutting owner's by change of grade, 266 
for obstruction of easement, 297 
effect of those in common with gen- 
eral community, 297 
assessing for opening of street, 302 
extending street across right of way, 302 
liability of city for in opening street, 303 



868 



134 
151 
152 
216 
244 
244 



541 



136 



156 

157, 248 

244 



CURATIVE ACT, 
effect on assessment of taxes, 

CURATIVE STATUTES, 

to cure illegal annexation. 



210 



320 



CURRENT EXPENSES, 
paying out of current revenue, 50, 777 
injunction to prevent issuance of 
warrant for, 



51 



50 
174 

777 



901 



563 



13 
25 

30, 89 
recoverable for change of street grade, 90 
saloon in residence portion of city, 130 
negligent construction of sewer, 154 

for defective sewer, how paid, 155 

who can recover on account of defect- 
ive sewer, 156 
liability of independent contractor 

for, 161 

measure of from injury by sewer, 162 
profits as element of in injury by 

sewer, " 162 

all to be recovered in one action, 162 
from constructing outlet to sewer, 186 



CURRENT REVENUE, 

payment of current expenses, 
anticipating by temporary loans, 
use of, 

CUSTODIAN, 
firemen's pension fund, 

CUTTING INTO STREETS, 

securing consent to, 



DAMAGES, 
liability for those caused by mob, 
for vacation of street, 
for change of grade of street, 



in opening of street, 304 

when right to becomes vested, 305 

payment out of general fund, 306 

city treasurer drawing warrants for, 307 
appealing from assessment of, 308 

costs on appeal from assessment of, 311 
effect of assessing and tendering, 311 
payment on opening of street, 311 

for opening or vacation of street, 316 
where buildings destroyed to prevent 

fires, 327 

change of street grade, 407 

assessment of, 410 

paid by city in condemnation pro- 
ceedings, 412 
certificate of in condemnation pro- 
ceedings, 412 
by construction of sewer, 433 
in condemnation for parks, 451, 452 
in condemnation proceedings, 

497, 566, 636 
pavment in condemnation proceed- 
ings, 499, 638 
w^here property seized, 562 
city paying on condemnation, 568, 569 
in cutting into streets, 633 
tender in water- works condemnation, 693 
where land condemned for sewers, 702 
for negligence in constructing sewer, 710 
where land condemned for parks, 742 
paj^ment of, 742 
failing to keep streets in repair, 797 
for negligence in improving street, 799 
caused by change of grade, 800 
negligence, 801 
byhole in sidewalk, 802 
when property owner liable for, 805 
notice to defend, 805 
by opening street, 806, 807 
tender in opening street, 808 
award of on condemnation, 809 
by defective construction of sewer, 820 
for obstructing easement of access, 884 
for injuries causing death, 871 



974 



INDEX. 



DANGER SIGNALS, 
duty to put up, 



{Beferences a 
231, 802 



DANGEROUS ARTICLES, 

regulating keeping of in city limits, 

DANGEROUS BUILDINGS, 
power to condemn, 
personal injury caused by, 

DANGEROUS EXCAVATIONS, 
notice of, 

DANGEROUS SIDEWALK, 
unprotected, 

DANGEROUS WALLS, 
city not liable for damages by, 

DANGEROUS WEAPONS, 
prohibiting carrying of, 

DEAD ANIMALS, 
ordinance for removal of, 

DEATHS, 

report of, 

damages for injuries causing, 



204 



142 
143 



250 



243 



142 



23 



22 



746 

871 



DEBT, 

no imprisonment for, 31 

created by contract for water supply, 138 
none created by funding bonds, 174 

limit of, 174 

where territory disannexed 392 

where territory annexed, 482 

where corporations consolidated, 548,677 
deduction of in taxation, 684 

created by contract for light or water, 735 
hov\^ affected by incorporation of 

town, 757 

for light, action on, 771 

power of town to contract, 776 

created by lighting contract, 777 

penalty is not, 781 

See IXDEBTEDXESS. 



DECAY OF TIMBERS, 
notice of, 



250 



DECLARATIONS, 
when municipality bound by those 
of officers, 370, 462 

DECLARATORY RESOLUTION, 
See Resolution; Improvement Resolu- 
tion. 



DECREE, 
declaring surrender of charter, 

DEDICATION, 

what is necessary to constitute, 
express or implied, 



180 



217 
217 



263, 
355, 



re to Pages . ] 

dedication-Continued. 

statutory- and common law, 

by plat,"^ 

when presumed, 

when implied from conduct, 

proof of, 

intention as affecting, 

by railroad company, 

in partition proceedings, 

presumption of by user, 

by use vrith owner's consent, 

by whom may be made, 

as an estoppel in pais, 

revocation of, 222 

attaching condition to, 

when question of law or fact, 

rule for construing maps and plats, 

when presumed against married 

woman, 
by husband, effect on wife's interest, 
by guardian of infant, 
by commissioners in partition, 
where fee remains, 
street and railroad crossings, 
effect of condition in, 
for parks, 
estoppel to assert, 
cemetery by, 
estoppel to question, 
of street by plat, 
irrevocable, 
passive acquiescence does not 

amount to, 
intention of party, 
conditions annexed to, 
by user, 
acceptance of, 
by husband alone, 
of park, 
when implied, 

DEDUCTION OF DEBTS, 

in taxation, 

DEED, 
by city on sale of real estate, 
how that by city executed, 
effect of recital in treasurer's, 
under sale on precept, 
mayor executing, 552, 

in sale on assessments, 

DE FACTO OFFICERS, 
where officers fail to take oath, 

DEFALCATION, 

vacation of office by, 

DEFAULTERS, 

not eligible to office, 

DEFECTIVE BRIDGE, 
assuming risk in using, 



218 
218 
218 
219 
219 
219 
220 
220 
220 
221 
221 
221 
811 
222 
222 
222 

223 
223 
223 
223 
223 
831 
264 
742 
356 
703 
703 
811 
811 

812 
812 
812 
813 
813 
813 
813 
813 



684 



167 
168 
294 
295 
619 
644 



296 



43 



249 



INDEX. 



975 



{Befei^ences are to Pages. 1 



DEFECTIVE DRAINAGE, 

effect of, 

damages caused by, 

DEFECTIVE PLANS, 

negligence in using for street, 

DEFECTIVE SEWER, 
who can recover damages on account 



155 
161 



255 



156 



155 



DEFECTIVE SEV\^ER PLAN, 
evidence of, 

DEFECTIVE SIDEWALK, 

notice of, 233 

complaint for injury on, 237 

loose board, 241 
contributory negligence in using, 

242, 251 

DEFECTIVE STREET, 

complaint for injuries caused by, 237 

use of, 240 
joint liability of city and railroad 

companv, 267 

who liable for, 267 

liability for, 767 

DEFECTIVE TRACKS, 

street railway using, 271 

DEFECTIVE WALK, 

liability of lot-owner, 261 

DEFECTS IN STREET, 
notice of, _ 141, 229 

duty as to discovery and repair of, 232 

constructive notice of, 232 

notice to mayor of, 233 

actual and constructive notice of, 233 

when notice of presumed, 233 

complaint for injuries caused by, 234 

presumption of notice of, 234 

caused by act of corporation, 234 

caused by acts of third persons, 235 

when licensee liable for, 236 

when citizen liable for, 236 

joint liability of city and contractor, 238 

evidence in case of injuries by, 238 

evidence of, 239 

using street with knowledge of, 240 
notice of, 738, 800 

liability for, 798 

when notice need not be shown, 800 

complaint on account of, 801 

effect of knowledge of, 803 

caused by third person, 804 

notice to defend, 805 



DEFENSE, 
invalidity of ordinance as, 
to street improvement. 



80 
721 



DEFICIENCY, 

effect of in firemen's pension fund, 899 



EFINITION, 

of interstate commerce, 


3 


due process of law, 


18 


equal protection of the laws, 


18 


of ex post facto Islw, 


33 


of lucrative office. 


37 


of special laws, 


40 


of general law. 


40 


of municipal corporation. 


61 


of "streams," 


113 


of rivers. 


113 


of water-courses, 


113 


residence portion of city. 


130 


of hawking and peddling. 


136 


of donation, 


198 


of streets, 


226 


of community in general, 


265 


of resident freeholder, 


414 


of personal property. 


784 


of telephone. 


863 


of offense, 


879 


of fire company. 


894 



DELAY, 

effect of in asking for injunction. 
See Estoppel; Laches. 



264 



DELEGATION OF POLICE POWER, 

validity of, 383, 384 

DELEGATION OF POWER, 

common council no right to, 107 

DELINQUENT ASSESSMENTS, 
collection of, 423 

DELINQUENT BONDS, 

collecting, 643 



DELINQUENT LANDS, 






return of. 




365 


DELINQUENT LIST, 






in taxation. 




692 


duty of auditor, 




660 


clerk making up. 




102 


publication of, 




216 


delivery to county treasurer, 




655 


collecting, 100, 365 


590 


657 


penalty on, 


215 


362 


duty of county auditor as to, 




365 


payment of, 




365 


settlement for. 


592 


659 


sale of lots for, 




593 


payment of bids. 




593 


guaranty in sale for. 




593 


delinquent list. 




6o9 


See Taxation. 







976 



INDEX. 



iBeferences are to Pages.l 



DEMAND, 

not necessary for illegal taxes, 212 
that railroad construct crossings, 267, 831 

for assessments, 412 

before suit on assessment, 420 

for sprinkling assessment, 436 

for payment of park assessment, 454 

before levy for taxes, 785 

in embezzlement, 876 

DEMURRER, 

on appeal from transcript, 291 
on appeal in improvement proceed- 
ings, 310 
testing complaint by, 795 
See Complaint; Pleadings. 

DEPARTMENTS, 

creation of, 397 

qualifications of members of, 398 

power of council to investigate, 477, 612 

mayor calling together heads of, 484 

list of, 486 

estimates by, 487 

limit of power to bind city, 488 

penalty for exceeding authority, 488 

council investigating, 544 

in city of 35,000, 555 

clerk for, 556 

in cities of 23,000, 625 
See Heads of Departments. 

DEPARTMENT OF ASSESSMENT AND 
COLLECTION, 

treasurer and assessor, 442 
duties of head of department of 

finance, 442 
salary of treasurer in cities of one 

hundred thousand, 443 
pay for assessment, 443 
penalty for treasurer or assessor re- 
ceiving pay, 443 
failure to perform duties, 443 
See City Treasurer. 

DEPARTMENT OF COLLECTION, 

See City Treasurer. 

DEPARTMENT OF FINANCE, 

comptroller, appointment, salary, 400 
duties of comptroller, 400, 488 

appointment of deputy comptroller, 402 
taking charge of sewer assessment 

roll, 431 

duties of head of, 442 
filing assessment roll with in park 

proceedings, 453 

comptroller as head of, 488 

appointment of comptroller, 488 

salary of comptroller, 488 

bond of comptroller, 488 

payment of salaries, 488 

deputy comptroller, 491 
See Comptroller. 



DEPARTMENT OF HEALTH AND 
CHARITIES, 
See Board of Health and Charities. 

DEPARTMENT OF LAW, 

city attorney, 403, 491 

assistants, 4.03 

duties of city attorney, 403 

salaries, 403 
See City Attorney. 

DEPARTMENT OF PUBLIC HEALTH 
AND CHARITIES. 
See Board of Health and Charities. 

DEPARTMENT OF PUBLIC PARKS, 
See Board of Park Commissioners. 

DEPARTMENT OF PUBLIC SAFETY, 

See Board op Public Safety. 

DEPARTMENT OF PUBLIC WORKS, 

board of public works, 404 

clerk of board, 405 

powers of board, 405 

See Board of Public Works. 

DEPARTMENT OF WATER- WORKS, 

See Water- Works Trustees. 

DEPENDENTS, 

pensioning those of policeman, 906 

payments to from firemen's pension 



fund, 

DEPOSITIONS, 
in actions pending before mayor, 

DEPOTS, 
regulating hackmen at, 

DEPOT GROUNDS, 
attempting to condemn for streets, 
effect of public use of. 



899 



77 



128 



224 

831 



DEPUTIES, 

city officers appointing, 
city clerk appointing, 
in departments, 
city attorney employing. 



396, 485, 555 

486 
561 



DEPUTY CITY ATTORNEY, 
appointment of, 
employment of, 

DEPUTY CITY CLERK, 
appointment of, 

DEPUTY COMPTROLLER, 

appointment of, 402, 

salary of, 
powers of, 
appointment and salary, 



492 
631 



625 



491, 628 
402 
402 

558 



INDEX. 



977 



875 



DEPUTY COUNTY TREASURER, 

indictment for embezzlement, 

DEPUTY MARSHALS, 
appointment of, 761 

bond and compensation of, 761 

DEPUTY TREASURER, 

appointment of, 518 

DESCRIPTION, 

of land in levee assessments, 195 

in sale for assessment, 294 

in petition for annexation, 323 

in suit to foreclose assessment, 426, 721 

in assessment, 717 

DESCRIPTION OF LAND, 
filing in recorder's office, 455 

DESCRIPTION OF PROPERTY, 

in report of commissioners, 304 

DESTROYING RECORDS, 

penalty for, 874 

DESTRUCTION OF BUILDINGS, 

to prevent fires, 327 

DETAIL OF POLICEMEN, 
power to make, 651 

DEVISES, 
for parks, 450 

to police pension fund, 903 

DIAGONAL STREETS, 
sidewalk assessments, 731 

DELIGENCE, 
in making repairs to streets, 232 

DIRECT ATTACK, 
appeal as, 290 

on assessment, 713 

See Collateral Attack. 

DIRECTORS, 
power of those in gas and water 

companies, 860 

contracts bj^ those of street railway, 850 

electing for library association, 926 

for library company, 927 

of public library, 929, 930 

DISABILITY, 
right to pension from firemen's 

pension fund, 899 

policemen retiring because of, 904 

DISANNEXATION, 

power of common council, 549 

by council, 616 

power over, 681 

jurisdiction, 681 
See Annexation. 

CiT. AND To.— 62 



\^Beferences are to Pages. "] 

DISANNEXING TERRITORY, 

how done. 



680 



DISCONTINUANCE OF PROCEED- 
INGS, 
rights in reference to, 305 

DISCRETION, 

of legislature as to whether law is 

general, 40 

in determiningvwhen change of grade 
necessary, 90 

courts refusing to control exercise of, 

116, 396 



in contracting for water supply, 
courts will not control, 
in exercise of police power, 
of heads of departments, 
as to benefits from sewers, 
in annexation proceedings, 
courts can not control, 
in building sidewalks, 
in making second improvement, 
injunction does not lie to control, 
of municipal body, 
in determining mode of improve- 
ment, 
mandate does not lie to control, 

DISCRETION OF COUNCIL, 

in matter of improvements, 

DISCRETIONARY POWER, 

not to be controlled by mandate, 
as to improvement of streets, 



138 
140 
384 
396 
458 
679 
735 
789 
789 
790 
798 

799 
806 



729 



199 
253 



DISCRIMINATIONS, 
against articles of commerce of other 

state, 2 

by ordinances, unconstitutional, 20 

in ordinances, illegal, 32 

effect of ordinances making, 123 

against citizens and products of other 

communities, 137 

in requiring licenses, 384 

by telephone company, 864 

DISFRANCHISEMENT, 
legislature's power in reference to, 36 



DISMISSAL, 

of street opening proceedings, 
of appeal, 

DISORDERLY PERSONS, 
jurisdiction over, 

DISPENSARIES, 

power to establish, 

DISSOLUTION, 
of library association, 



306 
309 



203 



475 



928 



978 



INDEX. 



DISSOLUTION OF TOWN, 

proceedings for, 

rights and contracts not affected, 



IBeferences are to Pages.'] 

DOUBLE ASSESSMENT, 
757 effect of in taxation, 
757 for sewers, 



DISTILLERIES, 

licensing and regulating, 

regulating location, 

power to license and regulate, 

DISTRIBUTING AGENT, 
ordinance interfering with, 

DISTRICTS, 

dividing town into, 

DITCH NEAR SIDEWALK, 

contributory negligence in using 
walk, 

DITCHES, 
converting into sewers, 

DIVERTING STREET, 

to another use, 



DOCKET FEES, 
before mayors or city judges, 
in police court. 



381, 608 
469 
541 

137 

752 

240 
702 

259 

77 
457, 521, 621 



DOCKS, 

power to establish and construct, 144 

power to construct and regulate, 183 

repairing, 183 

DOGS, 

power to regulate and tax, 22 

' city taxing, 206 

licensing and regulating, 381, 608 

town ordinance regulating, 765 

DOMESTIC CORPORATIONS, 

railroads as, 5 



UJNATiUiN, 

30wer of city to make. 


196, 200 


3y city, when payable. 


196 


defined, 


198 


by city, effect of. 


200 


park commissioners accepting, 


356 


power of council to receive, 


377, 469 


common council receiving, 


604 


by plat, 


811 


effect of for particular use. 


814 


water companies receiving, 


860 


to library association, 


927 


library by, 


929 


See Aid ; Dedication. 





DONATION TO STATE UNIVERSITY, 

by counties, cities or towns, 917 

agreements and conditions of, 918 

bonds for, sale of, 918 

only one donation, 918 

See Aid. 



207 
429, 430 



DRAINAGE, 

use of highway for purposes of, 125 
power of council over, 125 
power to provide for, 137 
city can not perform for private per- 
son, 139 
authority to construct, 152 
as part of street improvement, 153, 415 
nuisance created by, 156 
duty to repair, 157 
using highways for, 157 
extending beyond corporate bound- 
aries, 157 
failure to provide, 161 
constructing over real estate of others, 165 
power to construct, 185 
inlets and outlets to, 186 
statutes for liberally construed, 187 
construction in cities, 257 
damage by, 258 
power of council with reference to, 381 
power of board of public works over, 405 
collection of assessments for, 426 
power of board of public works to 

estabhsh, 427, 579, 634, 646 
change and construction of, 431 
constructing outside of city, 432 
condemning real estate for, 434 
power of council to design and con- 
struct, 542 
general power to construct, 563 
power of council over, 609 
board constructing, 646 
assessments for, 646 
converting into sewers, 702 
effect of failure of town to provide, 767 
See Sewers. 

DRAINAGE ACTS, 

liberally construed, 191 

DRAINAGE ASSESSMENTS, 

commissioner of drainage collecting, 190 

hen of, 190 

collateral attack on, 257 

See Assessments. 

DRAINAGE COMMISSIONERS, 

jurisdiction of, 152 

referring drainage matters to, 189 

report of, 191 

no power to construct drain in city, 257 



DRAINAGE CONTRACT, 
when void, 

DRAINAGE LAWS, 
ditches and drains under, 



161 



702 



INDEX. 



979 



\_Beferences are to Pages.'] 



DRAINAGE PROCEEDINGS, 

appraising benefits and damages in, 189 

notice of, 191 

effect of informalities in, 191 



DRAW BRIDGES, 

power to regulate, 

DRAAVINGS,. 
for public work, 



148 



408 



DRAWINGS AND SPECIFICATIONS, 

placing on file, 565 

of sewers and drains, 579 

filing with board of public works, 634 

DRAYMEN, 

requiring license of, 2 

DRIVER OF VEHICLE, 

negligence of where person injured 

on street, 236 

effect of contributory negligence of, 804 

DRIVING, 

liability for reckless and careless, 245 

DRIVING ON SIDEWALK, 
punishment, 866 

DRIVING ON STREETS, 

city regulating, 133 

power to regulate, 379 

DRUG STORES, 

prohibiting sale of liquors in, 4 

DUE COURSE OF LAW, 

what constitutes, 25 

secured by the constitution, 15 

where property is taken, 16 

in taxation, 18 

notice essential, 19 
want of presenting federal question, 20 

regulating street car fares, 21 

what constitutes, 25 

notice before taking property, 28 

in construction of sewer, 428 

in street improvements, 711 

DUEL, 
effect of challenge to, 36 

DUPLICATES, 

in levee assessments, 195 

DUPLICATE ASSESSMENT ROLL, 
depositing with treasurer, 419 

DUPLICATE TAX LIST, 

duty of city clerk to make, 85 

DUPLICITY, 
effect of in indictment, 868 



DURATION OF OFFICE, 

how determined, 



54 



DUTIES, 

of mayor, 394, 484, 619 

of citv clerk, 396 

of comptroller, 400, 558, 628 

of city attorney and assistants, 403 

of board of public safety, 

437, 438, 582, 649 
of policemen, 439, 585, 652 

of police force, 440 

of head of department of finance, 442 
of board of health and charities, 444 

of city sanitarian, 444 

of board of public works, 

493, 562, 563, 632 
of treasurer, 587 

of board of health, 594, 661, 744 

of city attorney, 630 

of county treasurer, 654 

of town treasurer, 759 

of town clerk, 759 

oflScers of trustees police pension 
fund, 902 

See Officers. 



E 



EARTH TAKEN FROM STREET, 

disposing of, 256 
See Surplus Earth. 

EASEMENT, 

destruction by vacation of street, 25 

for sewers, 152 

manner in which may be used, 226 

damages for obstruction of, 297 

condemning for water-works, 692 

in streets, 797 

over alluvial accretions, 813 

abandonment of, 813 

notice of, 859 

EASEMENT OF ACCESS, 

obstruction of, 297 

damage for obstruction to, 834 

EDUCATION, 

towns and cities, 908 

school trustees in cities and towns, 909 

duties of school trustees, 910 

graded high schools, 910 

term of school, 910 

management of school property, 910 

schools, control of in certain towns, 911 
town may abandon control of schools. 91 1 

property conveyed to township, 911 

control by township trustee, 911 
surplus special revenue, 911, 915 

tax, collection and payment, 912 

bonds for school buildings, 912 

use of proceeds, 913 



980 



INDEX. 



\_Eeferences a 

EDUCATION— CoNTixuED. ! 

special tax, 

condition before building 

title to school property, 

annexation of territory, 

reimbursement of school township, 

suits, how brought, 

donations by counties, cities or 
towns to state university, 

agreements and conditions of dona- 
tion, 

bonds, 

only one donation, 

aid to educational institutions, 

appropriating money, 

election for, 

notice of election, 

election to conform to general laws, 

form of ballot, 

certificate of vote, 

board of canvassers, 

tax lev3% 

advancements, 

city may take stock, 

pay of election oificers, 

forfeiture of rights, 

jurisdiction of circuit court, 

tax-payers released 



913 

915 
915, 916 
916 
916 
917 

917 

918 
918' 
918 I 

918 1 
919: 
919: 

918; 

919^ 

919 I 

920 ! 
920 
920 
920 
921 
921' 
921 
921 
921 



See Aid to Educational Institutions. 

EDrCATIOXAL PrRPOSES, 
exempting property used for from 
taxation, 47 



EDUCATIONAL INSTITUTIONS, 

aid to, 918 

EGEESS FROM BUILDINGS, 

providing in case of fire, 890 

ELECTION, 

to be free and equal, 35 

methods of, 38 

effect of tie vote, 38 j 
notice of that for incorporation of city, 62 ; 

notice of, 6-t | 

quo v:arranto to test validity of, 67 ; 

law governing in city, 70 

effect of irregularities in, 70 

notice to persons elected, 71 

penalty for refusal to serve, 71 

by councilmen and aldermen, 73 

of sinking fund commissioners, 176 

board of public works. 333 

duty of policemen as to, 348 

policemen not to take part in, 353 

contests of, 370 

general law governing, 370 

to fill vacancy in office, 371 

to fill vacancy in ofiice of mayor, 394 

of police judge, ' 456 

city of more than fifty thousand, 462 

of councilmen, 466 

of mayor, 483 



re to Pages.'] 

ELECTION— Continued. 

in cities of 35,000, 531 

of water-works trustees, 596 

of elective officers, 598 

law governing, 598 

of mayor, 618 

qualifications of voters, 664 

in cities and towns, 666 

using voting machines, 666 

to consolidate city and town, 676 

as to annexation, 677 

on water-works, 690 

notice of that to vote on ordinances, 775 

trustees of firemen's pension fund, 895 

to vote aid to educational institution, 919 

of directors for library association, 926 
See Referendum. 

ELECTION BOARD, 

in election for incorporation of city, 63 

to take oath, 70 

ELECTION IN TOWNS, 

who elected, 754 

tie vote, 754 

certificate of election, 754 

clerk's duties, 755 

trustees, how elected, 755 

ELECTION LAWS, 

use of machines, 667 

ELECTION OE JUDGE, 

for city court, 328 

ELECTION OFFICERS, 

duties where votes are registered by 

machine, 667 

pay of in educational aid election, 921 

ELECTION PRECINCTS, 

creation of, 665 



ELECTION FOR INCORPORATION, 

manner and return of, 63 

ELECTION TO INCORPORATE TOWN, 

notice to voters, 750 

polls, how long open, 750 

board of election, 750 

effect of, 750 



ELECTIVE OFFICERS, 

giving bonds, 
city of more than 50,000, 
filling vacancies in, 
oaths and bonds of, 
in cities of 35,000, 
enumeration of, 

ELECTORS, 

qualifications of, 
free from arrest. 

See Voters. 



372 
462 
463, 599 
464 
531 
598 



35 

38 



INDEX. 



981 



[Beferences are to Pages.'] 



ELECTRIC BELLS, 

as a protection against fire, 



ELECTRIC LIGHT, 
granting right to erect poles, etc., 

for, 
tax to pay for, 

ELECTRIC LIGHT COMPANY, 

subject to police power, 
duty where it occupies street, 
controlling location of poles of, 
duties in reference to streets, 
occupying streets, 

ELECTRIC LIGHT CONTRACT, 
when not exclusive, 
bond, 

ELECTRIC LIGHT PLANT, 

city erecting, 

action of board, 

advertising for proposals, 

bids, 

construction, 

committee to ascertain number of 

lights, 
report, 

letting of contract, 
issue and sale of bonds, 
superintendent, 
tax to pay bonds, 
sale of lights, 
increase of capacity of. 



892 



739 

772 



17 
141 
165 
229 

738 



737 
737 



737 

772 
772 
772 
772 

772 
772 
773 
773 
773 
773 
773 
773 



ELECTRIC LIGHT WORKS, 
power to construct and operate, 493, 633 

ELECTRIC PLANTS, 

penalty for interfering with, 881 

ELECTRIC POWER, 
right of street railway to use, 854 

ELECTRIC ROADS, 
not an additional burden, 263 

ELECTRIC WIRES, 
requiring them to be placed under- 
ground, 17 

ELECTRICITY, 
regulating use and supply of, 380 

power to regulate use and sale of, 541 

ELEVATORS, 

power to license, 379 

licensing, 470 

EMBANKMENTS, 

duty of city to guard, 231 

damages caused by 257 

building to divert surface water, 258 



EMBEZZLEMENT, 

of public funds, 875, 876 

by officers, 875 

by treasurers, 876 

indictment for, 876 

statute of limitations, 876 

demand, 876 

EMERGENCY, 

for appropriations, 399 

for ordinance going into effect, 468, 769 

EMINENT DOMAIN, 

special charter subject to, 13 
contracts subject to exercise of, 13 
denjnng right to jury trial in exer- 
cise of, 27 
compensation for a taking under, 28 
taking private property for sewers, 157 
appropriating land for streets under, 224 
taking land for second public use, 224 
special charter of railroad subject to, 225 
effect on mortgage, 299 
annexation not exercise of, 318, 320 
for parks, 451 
exercise of in drainage proceedings, 642 
power of regulation, 740 
lot owner's right, 798 
taking property in street, 798 

ENGINE HOUSES, 

power to erect and establish, 144 

attempting to condemn for streets, 225 

ENGINEER, 

duty in reference to levee assess- 
ments, 195 
making and certifying estimates, 282 
mayor appointing, 562 
report of on street improvement, 717 
in constructing town sewer, 823 
See Civil Engineer; City Engineer. 

ENGINEER'S ESTIMATES, 

prima facie correct, 92 

amendment of, 720 

ENGINEER'S REPORT, 

what must show, 717 

ENGLISH LANGUAGE, 

patrolmen to be able to speak, 345 

ENUMERATING POWERS, 

effect of, 115 

EQUAL PROTECTION OF THE LAWS, 
in taxation, 18 
in assessments for public improve- 
ments, 19 
what constitutes, 25 



EQUAL TAXATION, 
providing for. 



45 



982 



INDEX. 



iBefereyices are to Pages. 1 



EQUALIZATION, 

of city taxes, 

ERECTION OF BUILDING, 

enjoining, , 



ERRORS, 
waiver of. 



211 
143 
420 



See Objections. 



ERRORS OF JUDGMENT, 

effect of in plans for improving street, 255 



ESCAPE, 
arresting prisoner after, 

ESTIMATES, 

making for street improvement, 
before constructing harbor, 
for levees, 

engineer making and certifying, 
paying contractor on, 
assigned, 

essential to precept, 
presumption that properly made 
by departments, 
by heads of departments, 
for street improvements, 
correcting, 

what must contain on sewers, 
amending engineer's, 
approval of, 

contractors to satisfy of record, 
where street improved in town, 
See Final Estimates. 



95 



91 
181 
192 
282 
284 
285 
288 
291 
487 
657, 626 
716 
717 
718 
720 
720 
730 
794 



ESTIMATES OF EXPENDITURES, 

departments making, 398 

ESTOPPEL, 

by acceptance of ordinance, 11 

when none by recitals in bonds, 52 

as to grade of street, 90 

by report of city treasurer, 104 

after receiving benefits, 109 

when none by license to sell liquor, 130 

by standing by, 139, 276 

to set up ultra vires, 148 

to question local assessment, 159 
by petition to subscribe for railroad 

stock, 197 

to question taxes, 212 

to set up ultra vires as a defense, 249 
to object to street improvement, 

253, 293, 712, 721, 791 

occupancy of street does not create, 260 

to question annexation proceedings, 318 

to question annexation of territory, 319 

to assert dedication, 356 

to object to assessments, 425 

after issue of bonds, 577 

to question bonds, 645 

to question dedication, 703 

to question assessment, 713 



ESTOPPEL— Continued. 

by waiver, 725 

as to town taxes, 786 

of property owner by standing by, 789 

to object to collection of assessment, 795 

of property owner, 799 
See Laches ; Standing By. 



ESTOPPEL IN PAIS, 

dedication as, 
by dedication, 

EVANSYILLE CHARTER, 
power under to aid railroads, 

EVIDENCE, 

that town became a city, 

city ordinance as, 

certified copies by clerk as, 

of act of municipal body, 

admitting ordinance in, 

report of committee as, 

of defective sewer plan, 

of sewer assessment, 

of negligence in construction of 
sewer, 

of dedication, 

of intention to dedicate, 

in case of injury on defective street, 

of subsequent repairs, 

fact and opinion, 

sufficiency of in personal injury 
case, 

of circumstances attending injury, 

in action for abatement of nuisance, 

plans and specifications as, 

records of common council as, 

of annexation of territory, 

on hearing of petition for annexa- 
tion, 

of passage of ordinance, 

of city boundaries, 

power of comptroller to require, 

certified copy as, 

of municipal act, 

in suit on assessment, 

records of town building company as, 

EVIDENCE ALIUNDE, 

in attacking deed on precept, 

EXAMINING BOARD, 
for civil service, 
civil service agency, 

EXCAVATIONS, 
duty of city to guard, 
effect where natural causes produce, 
falling into, 

notice of dangerous one, 
who may make in street, 
damages by, 
liability of abutting owner for, 



221 
811 



200 



63 

80 

83 

84 

111, 151 

117 

155 

159 

161 
219 
220 
238 
238 
239 

239 
241 
247 
276 
309 
324 

324 
469 

480 
629 
682 
759 
796 
825 



J95 



396 
397 



231 
231 
241 

250 

261 
261 



INDEX. 



983 



iBeferences are to Pages.^ 



EXCAVATIONS IN STREET, 

notice of, 

EXCESSIVE BAIL, 

prohibited by constitution, 



801 



26 



EXCESSIVE FARES, 

penalty against street railroad for 
charging, 853 

EXCESSIVE PUNISHMENT, 

prohibited by the constitution, 26 

EXCLUSIVE POSSESSION OF STREET, 
can not be given, 228 

EXCLUSIVE PRIVILEGES, 

no power in city to grant, 11 

legislature can not grant, 32 

can not be granted, 138 

not proper to grant, 140 

city can not grant, 228, 271 

illegal to grant, 736 

for use of street, 737 
municipality can not grant, 740, 798, 845 

EXECUTION, 

from city court, 331 

firemen's pension fund exempt from, 900 

EXECUTIVE AUTHORITY, 
where vested, 393, 550, 618 

EXECUTIVE DEPARTMENT, 

power to bind city, 488 

EXECUTIVE DUTIES, 

council not to perform, 544, 611 

EXECUTIVE FUNCTIONS, 

council can not perform, 476 

EXECUTIVE OFFICERS AND DE- 
PARTMENTS IN CITIES OF MORE 
THAN 100,000, 
mayor and clerk, election, qualifica- 
tion of, 343 
vesting of executive authority, 392 
vacancy in ofiice of mayor, 394 
acting mayor, 394 
duties of mayor, 394 
salary of mayor, 396 
clerk, duties, salary, 396 
departments established, 397 
rules for departments, 397 
qualification of members of depart- 
ments, 398 
estimates of expenditures, 398 
appropriations, 398 
contracts limited to appropriations, 399 
issuing warrants bevond appropria- 
tions, ' 400 
comptroller, appointment, salary, 400 
duties of comptroller, 400 



EXECUTIVE OFFICERS AND DE- 
PARTMENTS IN CITIES OF MORE 
THAN 100,000— Continued. 

city attorney and assistants, 403 

salary of city attorney, 403 

board of public works, 404 

appointment of board, 404 

salaries of board, 404 

clerk of the board, 405 

powers of board, 405 

condemnation of property, 409 

list of owners of property taken, 409 
assessment of damages and benefits, 410 

minors and insane persons, 410 

duty of treasurer, 421 

bonds for street improvements, 421 



EXECUTIVE POWERS, 

where vested, 

EXECUTORS, 
taxation, 



483 



206 



EXEMPTION, 

from process for debt, 31 
from taxation, 47, 207 
of bank stock from taxation, 209 
from work on highways, 827 
of firemen's pension fund from seiz- 
ure, 900 
pensions of policemen exempt, 907 

EXHIBIT, 

assessment roll as, 419, 426 

in suits to foreclose assessments, 721 
ordinance as, 781, 790 

contract as to complaint, 795 

EXISTING CORPORATIONS, 

power to regulate, 41 

EXISTING REMEDIES, 
how statute affects, 708 

EXPENDITURES, 

of board of public works, 

336, 496, 566, 635 
of fire department, 340 

of police department, 346, 351 

of collecting city taxes, how deter- 
mined, 367 
estimates of, 398 
appropriations for, 398 
payable out of general fund, 409 
by board of public parks, 449 

EXPENSE OF IMPROVEMENTS, 

how assessed, 502 



EXPERT ACCOUNTANTS, 
mayor appointing, 

EXPLOSIVES, 
liability for damages caused by, 
regulating location of. 



924 



125 
205 



984 



INDEX. 



EXPLOSIVES— Continued. 

damages caused by firing, 237 

power to regulate location of, 378 

regulating storage of, 470, 538, 605 



\_Beferences are to Pages.'] 

FALSE CLAIM, 

a crime to present, 



EX POST FACTO LAWS, 

no state shall pass, 8 

shall not be passed, 33 

definition of, 33 

EXPRESS AUTHORITY, 
to subscribe for railroad stock, 197 

EXPRESS COMPANIES, 
unit rule in taxing, 6 

taxing property of, 211 

EXPRESS DEDICATION, 

a question of law, 222 

EXPRESS POWER, 
to issue bonds, construction of, 172 

to protect against fires, 325 

EXPRESSIONS OF PAIN, 

evidence of, 239 

EXPULSION, 

of members of council, 466 

EXPULSION OF COUNCILMEN, 

power in reference to, 374, 534 

right of, 602 

EXPULSION OF OFFICERS, 

right to, 111 

See Removal of Opficees. 

EXTENSION OF LINES, 

requiring street railway to make, 847 

EXTENSION OF TIME, 

to complete street improvement, 277 

EXTENSION OF WATER-WORKS, 
taxation for, 695 

EXTERNAL DOORS, 

to swing outward, 890 

EXTRAORDINARY FRESHETS, 

providing for, 158 

EX-UNION SOLDIER, 
free license to, 669 



F 

FACTORIES, 

power to locate and regulate, 377 

regulating location of, 605 

FACTORS AND BROKERS, 
power of town trustees to employ, 763 



FARES, 

regulating those of street railway, 

FARM LAND, 
exempting from municipal taxation, 
taxation in cities, 
power of city to tax, 
taxing that in towns, 
improvements adjoining, 

FAST DRIVING, 

town trustees may prevent, 
power to prohibit, 

FEDERAL COURTS, 
local law binding on, 
when suit for mandate not remov- 
able to. 



FEDERAL QUESTION, 
where lack of due process of law 

alleged, 
ordinance regulating rate for gas. 



878 



844 



47 
210 
324 

784 
789 



76& 
769 



115 

268 



20 
21 



FEE-SIMPLE, 

abutting owner retains, 223, 259 

title acquired by canal company was, 859 

FEES, 

of mayor or city judge, 77 

of city clerk for transcripts, 83 

of marshal and constable, 93 

of city attorney, 96 
of treasurer on property sold for 

taxes, 102 
for collection of taxes, 103 
in city court, 332 
policemen or ofiicers not to receive, 342 
where police ofiicers serve process, 343 
none for policemen, 352 
taxation and collection for city, 354 
how applied, 398 
collected by city attorney, 403 
police judge not to receive, 458 
of city clerk, 485 
heads of departments not to receive, 487 
of city treasurer, 518 
ofiicers of police court not to receive, 522 
in mayor's court, bb'S 
for boarding prisoners, 554 
ofiicers not to receive, 556, 622 
duty of comptroller to pay over, 559 
allowed sheriff for collecting taxes, 588 
city attorney prohibited from re- 
taining, 630 
of city treasurer on tax sale, 688 
in sale on precept, 728 
oflScers not entitled to, 754 
of marshal, 760 



INDEX. 



985 



[Beferences are to Pages."] 



FEES AND SALARIES, 

of officers, 28 

laws regulating to be uniform, 41 

in full for services, 41 

FELONY, 

when issuing bonds amounts to, 174 

conviction of vacates office, 879 

See Crimes and Misdemeanors. 

FEMALES, 
sentencing to home for friendless 
women, 886 



FENCES, 

duty of railroad to build, 

FERMENTED CIDER, 

as intoxicating liquor. 



267 
132 



FERRIES, 

right of cities to tax and regulate, 8 

power of common council over, 112 

power to license, 113 

FIFTY THOUSAND, 

See Cities of Fifty Thousand. 



FILTHY STREETS, 

power to compel owner to clean. 



127 



FINAL ESTIMATE, 

presumption as to, 284 
for street improvement, 505, 641, 717 

notice of, 572 

hearing on, 572 

modif3dng or confirming, 572 

engineer making, 7JL7 

FINANCES, 
control of common council over, 115 

power of common council to manage, 613 
See Department of Finance. 

FINE, 

for interfering with police board, 

347, 353 
for making contract with officer, 373 
imprisonment for not paying, 

385, 522, 622 
for pettit larceny, 457 

for violation of ordinance, 543, 611 

town trustees prescribing, 779 

disposing of those for lewdness, 887 

disposing of those for gambling, 887 

mayor accounting for, 888 

as part of police pension fund, 903 

See Crimes and Misdemeanors. 



FINES AND COSTS, 
imprisonment for, 



31 



FIRE, 

liability for property destroyed by, 144 
regulations to prevent, 325 
inherent power to protect against, 325 
effect of failure to protect against, 326 
no charge for water for, ^ 526 
providing means for fighting, 764 
protection from, 890 
egress from buildings, , 890 
fire escapes, 891 
approval of fire escapes by inspector, 891 
watchmen, ' 892 
lights, 892 
electric bells, 892 
chain and knotted rope, 892 
penalty for failure to provide fire es- 
capes, 893 

FIRE ALARM TELEGRAPH, 

indebtedness created by contract for, 50 



FIRE APPARATUS, 
power to provide, 
power to purchase. 



326 
764 



FIREARMS, 
council regulating use of, 

125, 378, 470, 605 

FIRE BUCKETS, 
requiring owners of buildings to 

purchase, 763 

FIRE COMPANIES, 
exemption from jury and military 

duty, 744 

exemption from city tax, 744 

town trustees organizing, 763 
exempt from work on highway, 764, 828 

definition of, 894 

FIRE DEPARTMENT, 

right to provide and maintain, 39 
matter of local self-government, 54 
negligence of, 144 
fire wardens, 325 
regulation to prevent fires, 325 
fire engines and houses, 326 
power of chief engineer and assis- 
tants, 326 
privileges of firemen, 327 
destruction of buildings, 327 
control of, 339 
appointment of officers of, 340 
expenses of, 340 
rules governing, 341 
power to prevent interference with, 474 
control of, 513 
See Metropolitan Police and Fire De- 
partment; Board of Public Safety. 



986 



INDEX. 



FIRE DISTRICTS, 

dividing city into, 
creation of, 

FIRE ENGINE, 

regulating and protecting, 

power to provide, 

power of town trustees to purchase, 

FIRE ENGINE-HOUSE, 

power to construct, 

FIRE ENGINEER, 
authority of. 



FIRE ESCAPES, 

compelling persons to erect, 
penalty for not providing, 
duty to provide, 
approval by inspector, 
plan for, 

FIRE FORCE, 

control of, 



FIRE LIMITS, 
power to establish, 
enjoining removal of building 

within, 
building in as nuisance per se, 
power to prescribe, 
power to define, 539, 

town trustees establishing, 

FIREMEN, 

risk assumed in use of streets, 
liability for negligence of, 
privileges of, 
are municipal servants, 
not to be removed on accouo 

politics, 
appointment of, 

not to do political work, 342, 441, 
board of safety removing, 
hearing charges against, 
removal of, 514, 

insurance fund for, 
removal and punishment of, 
to wear badges, 
terms of, 
punishment of, 
exemption from jury and military 

duty, 
exemption from city tax, 



IBeferences are to Pages.} 

FIREMEN'S PENSION FUND— Contin- 
ued. 
selection of trustees, 
election, 
time, 

terms of trustees, 
mode of electing trustees, 
officers of board of trustees, 
pension fund, wdiat constitutes, 
investment of funds, 
accounts, 

bond of president, 
reports, 

beneficiaries, who are, 
deficiency, 
pro rata payments, 
amount paid, 
retiring members, 
payments to dependents, 
pensioners under former laws, 
re-examination of retired members, 
warrants for money, 
exemption of funds from seizure, 
custodian of funds, 
acts repealed, saving clause. 



880, 



438 
613 



141 
326 
763 



326 



326 



606 
893 
891 
891 
891 



683 



142 

143 
144 
470 
606 
771 



246 
326 
327 

327 

338 
340 
517 
438 
438 
650 
517 
583 
585 
650 
650 

744 
744 



FIREMEN'S PENSION FUND, 

unconstitutional law, 46 

board of trustees, 893 

cities included in act, 893 

composition of board, 894 

by-laws, 894 

oaths, 894 

constitutional law, 894 

fire company defined, 894 



FIRE-PROOF BUILDINGS, 
compelling construction of, 

FIRE PROPERTY, 
power to regulate and protect, 

FIRE PROTECTION, 



895 



896 
896 
898 
896 
897 
897 
897 
897 
898 
899 
899 
899 
899 
899 
900 
900 
900 
900 
901 
901 



471 



642 



power of council to provide for, 
paying for, 


204 
391 


FIRE WARDENS, 

councilmen as, 

powers of, 

duties of, 

tow^n trustees appointing, 

pow^er of town trustees to appoint. 


325 
325 

761 
764 

768 


FIREWORKS, 

council regulating use of, 
regulating use of, 


125 

470 


FIRING EXPLOSIVES, 

damages caused by, 


237 



FLAGMAN AT CROSSINGS, 
duty of railroad company to main- 
tain, 152 
inviting person to cross, 270 
power to provide at railroad cross- 
ings, 382, 474" 
power to require railroads to keep, 

642, 610 

FOOD, 
inspectors of, 445 

inspection of, 595 

providing for inspection of articles 
of, 606 



INDEX. 



987 



[Beferences are to PagesJ] 



POOD PEODUCTS, 

regulating sale of, 141 

power to regulate sale of, 878 

requiring inspection of, . 470, 538 

FOOT PASSENGERS, 

duty in crossing street, 245 

right at railroad crossing, 269 

FORCE, 
marshal may use in making arrest, 95 

FORECLOSURE, 

of assessment liens, 182, 425, 607, 713, 725 
street improvement lien, 

281,421,576,645, 707 
of assessment for parks, 452 

of assessment in condemnation pro- 
ceedings, 499 
right to by city, 716 
personal judgment in, 723 
reasonable attorney's fee in action 

for, 723 

recovery of illegal fees, 734 

FORECLOSURE OF ASSESSMENT, 
costs and attorney fee, 416 

attorney's fees in, 426 

sufficiency of complaint in, 426 

parties to action for, 427 

FORECLOSURE SUIT, 
how proceeds disposed of on sale, 425 

FOREIGN CORPORATION, 

taxing stock in, 209 

FORFEITED RECOGNIZANCES, 

disposing of proceeds of, 887 

FORFEITURE, 
destroving buildings to prevent fire 

is not, 328 

publishing ordinances providing for, 467 

publishing ordinance imposing, 603 

by street railway company, 847 

FORM OF BALLOT, 
in educational aid election, 919 

FOUNDRIES, 

regulating location, 469 

FOURTEENTH AMENDMENT, 

construction of, 15 

FRANCHISES, 

grant of as a contract, 10 

taxation of, 13 
power of board of public works to 

grant, 406 

to lay gas mains in street, 740 

voting on ordinances for, 774 

length of that of street railway, 844 



FRANCHISES— Continued. 
stockholders of corporation accept- 
ing, 
terminating that of street railway, 
suit to forfeit that of street railway, 
street railway may acquire, 

FRANCHISES FOR RAILWAY, 

prohibited through parks, 

FRAUD, 

imprisonment for, 

effect of in accepting public work, 

in lighting contract. 



840 
843 

848 
849 



449 



31 

420 
738 



FREE LIBRARIES, 
tax for support of, 175 

FREEHOLDERS, 
right to appeal in annexation pro- 
ceedings, 547 
petitioning for disannexation, 549 
appealing from annexation proceed- 
ings, 615 
petitioning for vacation of cemetery, 704 
petitioning for street to be opened in 
town, 806 

FRIGHTENING HORSES, 

objects in the street, 245, 802 

liability of railroad for, 268 

street car company, 273 

FRONT FOOT, 

assessments according to, 414 

FRONTAGE, 
sewer assessments on basis of, 430, 580 
assessment according to, 570 

sidewalk assessments according to, 730 

FUGITIVE, 
constable may arrest, 93 

FUNDING BONDS, 

power to issue, 52, 173, 673 

create no new debt, 174 

cities and towns issuing, 671 

interest on, 672 

length of time to run, 672 

constitutional limitation, 672 
tax to pay interest and principal, 673 
See Bonds. 

FUNDING DEBT, 
by small city, 178 

See Indebtedness. 

FUNDS, 
dut}' to keep separate, 664 

FUNERAL BENEFITS, 
for policemen, 905 



988 



INDEX. 



\Beferences are to Pages.'] 



FUTUEE SUPPLIES, 
indebtedness created by contract for, 51 



G 



GALLEEY OF ART, 
in connection with public library, 932 

GAMBLING, 
prohibiting near parks, 450 

disposing of fines for, 887 

GAMBLING ROOM, 
punishment for keeping, 26 

GAMES, 
power to regulate, 132 

GAMING, 

power to destroy devices used for, 127 
duty to suppress, _ 441 

power to council to suppress, 541, 509 

GAMING DEVICES, 

power to seize and destroy, 381 

GAMING HOUSES, 
power of city to suppress, 127, 473, 609 
duty to suppress, 516, 586, 652 

GARBAGE, 

requiring removal of, 135 

contract for removal of, 136, 633 

disposing of, 227 

power to require removal of, 378, 494 
board of public works providing for 

removal of, 408 

providing for removal of, 564 

cities and towns providing for re- 
moval of, 670 



GARBAGE ORDINANCE, 

validity, 

GARDENS, 
admission to in parks. 



384 



450 



GAS, 

ordinance regulating rate for, 21, 123 

contract for lighting streets with, 140 

regulating use and supply of, 380 

power to contract for, 495, 563 

power to regulate use and sale of, 541 

exclusive privilege to furnish, 736 

town trustees contracting for, 771 

penalty for setting fire to, 882 
See Natural Gas. 

GAS AND WATER COMPANIES, 

marine railways, 858 

gas pipes, 858 

gas and water-works companies, 858 

completion of unfinished canals, 858 

right of way, 858 

power of directors, 860 



GAS COMPANIES, 
taxing franchises of, 
rights in the streets, 
regulating charges of, 
negligence in use of streets, 
granting right to use streets, 
powers of, 

GAS CONNECTIONS, 
power to regulate, 
regulating making of, 
altering, 
making without consent, 

GAS MAINS, 
franchise to lay in the streets, 

GAS MIXERS, 
penalty for refusal to deliver, 

GAS PIPES, 
right to lay, 

GAS SUPPLY, 
exclusive privilege. 



13 
226, 227 

227 
229 
739 
858 



166 
607 
881 
881 



740 



881 



858 



736 



GAS WORKS, 
city may construct and operate, 10 

power to construct and establish, 

139, 493, 563, 633 

GATE KEEPER, 
inviting person to cross, 270 

GATES, 

at railroad crossing, 151 

requiring railroads to maintain, 

609, 765, 805 

GENERAL ASSEMBLY, 
duty to provide system of taxation, 45 



GENERAL CHARTER, 

judicial notice of. 



761 



GENERAL FUND, 

paying for part of sewer out of, 186, 433 

paying for levees out of, 192 
paving for street improvement out of, 

285, 793 
paying damages for street opening 

out of, 303 

paying damages out of, 306 

expenses payable out of, 409 
paying for sprinkling and sweeping 

out of, 435 

paying for cleaning streets out of, 734 

paying for lights out of, 735 

GENERAL LAW, 

what is, 40, 370 

legislative discretion, 40 

in reference to schools, 41 

applying to municipal corporations, 42 

effect on taxation, 206 

governing incorporation of towns, 749 
See Constitutional Law. 



INDEX. 



989 



ISeferences a 

GENERAL POWERS OF COUNCIL, 
enumeration of, 115, 469, 475 

See Common Council. 

GENERAL SEWERS, 



assessments for costs of, 


510 


assessment roll for, 


510 


notice of, 


510 


remonstrance, 


510 


how cost of paid, 


647 


construction of. 


700 


cost of constructing, 


701 


See Sewers. 




GENERAL VERDICT, 




special findinj^s conflicting with, 


251 


GENERAL TAXES, 




power to levy, 


205 


See Taxation; Taxes. 





GIFTS, 

no power to make of city property, 119 

power of council to receive, 469 
officers not to accept, 465, 600 

common council receiving, 604 

to police pension fund, 903 

GLUE FACTORIES, 

power to regulate, 377 

regulating location, 469 

GOOD FAITH, 

presumption of, 277 

GOVERNMENT, 

three departments of, 38 

GOVERNMENT AND POWERS OF 
CITIES, 

meetings of council, 106 
casting vote by mayor, 106 
president pj^o tempore of council, 106 
stated and special meetings of coun- 
cil, 106 
officers elected by council, 108 
enacting ordinances, 108 
approval and objection to ordinances, 109 
publication of penal ordinances, 110 
expulsion of officers, 111 
city seal, 112 
streams and ferries, 112 
contracts, 113 
salaries of officers, 114 
fixing salaries, 114 
control of finances, 115 
general powers, 115 
licensing and regulating business, 165 
fixing grades of railroad tracks, 165 
regulating sewer, gas and water con- 
nections, 166 
locating market-houses, 166 
authorizing pipes laid in streets, 167 
selling real estate, 167 



re to Pages.'\ 

GOVERNMENT AND POWERS OF 
CITIES— Continued. 
appraising real estate sold, 167 

conveying public grounds, 168 

how to execute deed, 168 

purchasing real estate for sanitary 

purposes, 168 

establishing water-works, 168 

establishing infirmary for poor, 169 

power to borrow money, 169 

purposes for which loans may be 

made, 169 

sale of bonds, 170 

issuing funding bonds, 173 

limit of debt, 174 

limit of tax levy, 175 

orders forbidden, 175 

appropriations forbidden, 176 

sinking fund commissioners, 176 

politics of sinking fund commis- 
sioners, 176 
duties of city treasurer, 177 
tax for sinking fund, 179 
surrender of ctiarter, 179 
petition to surrender charter, 180 
vested right not affected by surren- 
der of charter, 180 
constructing harbor, 180 
contract to construct harbor, 180 
appropriating land for harbor, 181, 182 
constructing harbor slips and docks, 

183, 184 
constructing sewers, drains and cis- 
terns, 185 
constructing levees, 192, 193 
aid to roads, bridges, etc., 195 
• aid to railroads, hydraulic com- 
panies, etc., 200 
aid to roads in other states, 201 
bonds by border city, 201 
payment of aid, 202 
jurisdiction beyond limits, 203 
enacting by-laws and providing pen- 
alties for violation, 204 
See Board of Public Works ; Board of 
Public Safety ; Board of Public 
Health and Charities ; Comptrol- 
ler ; Common Council ; Mayor. 

GOVERNOR, 

commissioning city judge, 328 

appointing police commissioners, 

343, 348, 349 
distributing arms, 671 

GRADE CROSSINGS, 
power to abolish, 266, 476 

requiring railroads to construct, 385 

GRADE OF STREET, 

how established. 89, 90 

adopting town grade, 89 

negligence in changing, 90 

estoppel of corporation as to, 90 



990 



INDEX. 



\_Beferences are to Pages. "] 



GRADE OF STREET— Continued. 
council fixing for railroad tracks, 165 
right to change, 257 

abutting owner damaged by change 

of, 266 

power to fix and change, 407 

establishing and keeping records of, 495 
for sidewalk improvements, 791 

power of town to change, 800 

railroad conforming to that of street 

at crossings, ^ 829 

mandamus to compel railroad to 

conform tracks to, 831 

track of street railway conforming to, 836 
See Change of Grade. 

GRADE OF SIDEWALK, 
power of town trustees to fix, 788 

GRADED HIGH SCHOOLS, 

power to establish, 910 

GRAND ARMY, 
apropriations for entertaining, 399 

GRAND JURY, 

inspecting work-house, 885 

GRANT, 
for parks, 450 

GRANT OF FRANCHISES, 
a contract within the constitution, 10 



GRAVEL ROAD, 
tax to build and repair. 



209, 227 



GRAVEL ROAD COMPANY, 

consenting to construction of street 
railwajs 854 



GRAVEL WALKS, 

constructing, 

GUARANTY, 

in tax sale, 



274, 708 
366, 593 
223, 



GUARDIAN, 

dedication by, 

as party in street opening proceed- 
ings, 304 

appearing in condemnation proceed- 
ings, 410 

taxing property in hands of, 688 

appointing for infants and insane 
persons, 809 

GUARDS, 
duty to put at embankments, 231, 239 
See Embankments ; Railings. 

GUNPOWDER, 
town trustees regulating storage of, 764 



GUTTER, 
requiring corporations to keep clean, 150 



GUTTER CROSSINGS, 
duty to keep safe, 

H 



244 



HABEAS CORPUS, 
to secure release of person free from 
arrest, 38 

HABIT OR CUSTOM, 

in boarding street cars, 272 

HACKMEN, 
requiring license of, 2, 208, 541 

HACKNEY COACHES, 
power to establish stands for, 147 

HACKS, 

city regulating, 128, 769 

HAND ORGANS, 

power of council to regulate, 125, 377 
regulating use on streets, 469 



HARBORS, 

rights of states to improve, 
power to improve, 
power of city to construct, 
city may do work, 
contract for, 



7 
145 
180 
180 
180 



contractor giving bond to construct, 181 
map and profile of, 181 

appropriating land for, 181, 182 

notice of appraisement of land taken 

for, 182 

report in condemnation proceedings, 182 

HARBOR CHANNELS, 
power to construct and regulate, 183 



HARMLESS ERROR, 
instruction to jury, 

HAWKERS, 
cities and towns licensing, 
power to license, 

HAWKING AND PEDDLING, 

power of city to regulate, 
licensing, 



804 



3 
472 



136 
136 



HEADS OF DEPARTMENTS, 

authority of, 396 

mayor appointing, 397, 619, 626 

mayor calling together, 484 

qualifications of, 486, 556, 626 

appointments by, 556, 626 

report of moneys received, 556, 626 

estimates by, 557, 626 

See Board of Public Works; Board of 
Public Safety ; Comptroller. 



INDEX. 



991 



[Beferences are to Pages.} 



HEALTH, 

injunction to protect, 128 
power of municipality, 147 
power of council over, 377 
power to make regulations concern- 
ing, 471 
duty of common council to protect, 604 
feee Board of Health and Charities. 

HEALTH AND CHARITIES, 

See Board of Health and Charities. 



HEALTH AND SAFETY, 

right to guard, 

HEALTH LAWS, 

penalty for violating, 

HEALTH OFFICER, 

as city officer, 

HEALTH ORDINANCES, 

passage of, 



119 



746 



66 



445 



HEARING, 
kind of to meet constitutional re- 
quirements, 19 
before assessment for local improve- 
ment, 25 
on report in drainage proceedings, 189 
by city commissioners, 302 
of petition for annexation, 324 
charges against firemen and police- 
men, 438 
on final estimate for street improve- 
ment, 572, 641 
notice of, 718 

HEARING AND ORDER, 

in matter of incorporation of town, 748 



HEAT, 
street railway furnishing, 

HEATING STREET CARS, 

duty in reference to, 
penalty on failure, 

HEIRS, 

conveyance to in sale on precept, 



855 



857 
857 



728 



HIGHWAYS, 

power of state over, 7 

taking land for by the state, 29 

local assessments for, 47 

use for drainage purposes, 125, 157 

by twenty years' user, 222 

attempting to take right of way lon- 
gitudinally for, 
crossing right of way, 
not always a street, 
damages for obstructing. 



constructing railroad in. 



225 
225 
226 
247 
269, 805 



HIGHWAYS— Continued. 
private corporation suffering to be 

out of repair, 308 

locating through cemeteries, 460 

changing location of, 639 

town trustees vacating, 768 

power of town trustees over, 796 
county board no power to open in 

town, 806 
notice and duty of reviewers, 826 
on boundary line of city or town, 826 
petition by abutting owners, 827 
action on petition, 827 
power of petitioners, 827 
jurisdiction of county board to es- 
tablish, 827 
exemption from work on, 827 
residents of cities and towns exempt 

from work on, 828 

cities paying for improvement of, 829 

duty of street railway as to, 837 

granting use of to street railway, 853 

street railway track on, 854 

penalty for obstructing, 867 

obstructing with cars, 868 

signals where train approaches, 869 

HISTORY, 

judicial notice of, 751 

HITCHING POST, 

in street, 247 

HOLE IN THE STREET, 

injury caused by, 237 

HOME FOR FRIENDLESS WOMEN, 

when females may be sentenced to, 886 

trustee to enforce judgment, 886 

inspection, 887 

HOOK AND LADDER COMPANIES, 

organizing, 326 
See Fire Companies. 



HORSE RACING, 
prohibiting near parks, 



450 



HORSES, 
allowing objects calculated to frighten 

to be in the streets, 245 

liability of railroad for frightening, 268 
liability for injury to runaway horse, 869 



HOSE LADDERS, 

regulating and protecting, 

HOSPITALS, 

power to erect and establish, 
power of council to regulate, 

HOTELS, 
licensing, 
protection against fire. 



141 



144, 475 
543 



541 

892 



992 



INDEX. 



\_Beferences are to Pages."} 



HOUSES, 

requiring numbers for, 

HOUSE MOVING, 
control of, 

HOUSES OF ILL FAME, 

power to suppress, 
visiting outside of city, 
when no authority over, 



472 



230 



127, 473 
135 
203 



HOUSES OF REFUGE, 

power to erect and establish, 144, 543 

HUMANE INSPECTOE, 

appointment and salary, 354 

petition of humane society, 354 

duty of, 355 

pay of, 355 

powers of, 355 

prosecuting offenders, 355 

affidavit by, 355 

HUMANE SOCIETY, 
petitioning for inspector, 354 

HUSBAND, 
when negligence not imputed to wife, 236 

HUSBAND AND WIFE, 

effect of husband's dedication to 
public use, 223 

husband's dedication bars wife's in- 
terest, 813 

HYDRAULIC COMPANIES, 

aid to by cities, 200 



IDIOTS, 
redeeming from sale on precept, 288, 728 

ILLEGAL ANNEXATION, 

taxes in case of, 319 

sufficiency of complaint in suit to 
restrain, 86 

See Annexation. 



ILLEGAL ARRESTS, 
liability of town for, 

See Arrests. 

ILLEGAL FEES, 
right to recover, 

See Fees, 



760 



734 



ILLEGAL TAX, 
injunction to prevent collection of, 

86, 210 
recovery of, 210, 687 

demand for not necessary, 212 

injunction against, 786 



ILLEGAL WARRANTS, 
penalty for issuing, 558, 627 

ILLUSTRATIVE CASES, 
of lucrative offices, 37 

IMPEACHMENT OF OFFICERS, 
how may be done, 43 

by common council, 385, 386, 544 

for failure to perform duties, 443 

powers of council, 478, 612 

two-thirds vote required, 545 

See Removal of Officers. 

IMPEACHMENT PROCEEDINGS, 

power of council, 477 



IMPERFECT PLAT, 

correcting. 



814 



IMPLICATION, 

repeal of ordinance by, 

81, 122, 279, 782, 791 

IMPLIED CONDITION, 

in transfer to school township, 916 



IMPLIED DEDICATION, 

what constitutes, 
a question of fact, 
when exists, 



219 
222 
813 



IMPLIED POWERS, 

of corporation, 116 

extent of, 117 

in reference to lighting streets, 140 

to construct drains and sewers, 152 
of city to sell real and personal 

estate, 164 

of city to sell real estate, 167 

to issue bonds, construction of, 172 
to cross railroad right of way with 

street, 225 

IMPOUNDING ANIMALS, 

as police regulation, 135 

ordinance in reference to, 139, 765 

invalid ordinance, 769 

IMPRISONMENT, 

for violating election law, 31 

for fines and costs, 31 
for interfering with police board, 

347, 353 

for not paying fines, 385, 522, 622 

for petit larceny, 457 
for violation of ordinance, 

476, 543, 611, 781 

tampering with voting machine, 669 

for violating town ordinances, 780 
See Crimes and Misdemeanors. 



IMPRISONMENT FOR DEBT, 

when to be none, 



31 



INDEX. 



993 



\_Beferences are to Pages."] 



IMPROVEMENT, 

on real estate, taxation of, 87 
considering in suit for change of 

street grade, 90 

regarded as benefits, 282 
paving for on opening or vacation of 

street, 316 

power of board of public works, 405 

petition for, 413 

remonstrance against, 413 

costs of, 414 

of one side of street or sidewalk, 414 

lots liable to assessment, 416 
payment by installments, 417, 420 

assessment roll, 418 

affidavit of contractor, 418 

assessments for, 419 

notice to delinquents, 419 

waiving errors, 420 

payment before due, 420 

duly of treasurer, 421 

effect of failure to pay installments, 425 
power of board of public works to 

design, 493 

priority of liens, 714 

without petition, 716 

adjoining farm lands, 789 

under repealed statute, 791 

exacting cost from street railway, 841 
See Street Improvement. 

IMPROVEMENT BONDS, 

prepayment of, 507 

issuing direct to contractor, 577 

lien created by, 577 

attorney's fees in suit to foreclose, 578 

not city indebtedness, 725 
See Bonds. 



IMPROVEMENT BY OWNER, 

allowance for, 



716 



IMPROVEMENT ASSESSMENTS, 
actions to enforce, 734 

sufficiency of complaint in suit to 
collect, 794 

See Assessments. 

IMPROVEMENT LIENS, 



two methods for enforcing, 


729 


notice of. 


788 


effect of repeal. 


791 


IMPROVEMENT OF STREETS, 




power over streets. 


216 


jurisdiction in, 


253 


discretionary power in. 


253 


effect of irregularities in, 


253 


estoppel to object to. 


253 


consequential damages from. 


254 


error of judgment in plans. 


255 



disposing of earth taken from street, 256 
injunction to prevent, 258 

petition for, 273 

CiT. AND To.— 63 



IMPROVEMENT OF STREETS— Cont'd. 

power to make liberally construed, 274 

combination among petitioners for, 275 

without petition, 275, 283 

without letting contract, 275 

order for, 275 

proceedings required, 275 

ordinance for, 275 

resolution for, 275 

when to object to, 277 

length of, 278 

under invalid contract, 278 

how costs of apportioned, 279 

apportioning costs of, 280 

lien for, 281, 283 

payment for, 283 

how costs of levied, 285 

how payment for enforced, 285 

surety completing, 285 

how appeal affects proceedings, 293 

how repeal of law affects, 295 
See Street Improvement. 



IMPROVEMENT ORDINANCE, 
owners charged with notice of, 



276 



IMPROVEMENT PROCEEDING, 

appeal from, 283, 309 

effect of appeal, 310 

dismissal after appeal, 310 

IMPROVEMENT RESOLUTION, 

notice of, 501, 569 

adoption of, 569, 640 

IMPUTED NEGLIGENCE, 

where injuries caused by defects in 
street, 236 



INCIDENTAL POWERS, 

extent of, 

INCONVENIENCE, 
effect of that caused by street im- 
provement, 

INCORPORATED TOWN, 

duty to keep streets in repair, 
working streets and alleys in, 

INCORPORATION, 

presumption as to, 
unnecessary to allege, 
judicial notice of, 
by prescription, 



62, 



117 



255 



796 
828 



752 
623 
751 
752 



INCORPORATION AND OFFICERS. 

Cities of More than 100,000, 

what cities governed by act, 369 

officers, election, 370 

contests of elections. 370 

powers and duties of old officers, 370 

elections to fill vacancies, 371 



994 



INDEX. 



\^Beferences are toPages.l^ 



INCORPORATION AND OFFICERS— 

Continued. 

officers to qualify, 372 

oaths and bonds, 372 

contracts with officers prohibited, 372 

officers not to purchase claims, 373 

Cities of More than 50,000, 

cities governed by act, 461 
elective officers, 462 
election, 462 
powers of officers under old charters, 463 
vacancies, filling of, 463 
notice to persons elected, 463 
oaths and bonds, 464 
officers not to have interest in con- 
tracts, 464 
officers not to purchase claims, 464 

Cities of More than 35,000. 

cities governed by act, 530 
elective officers, 531 
elections, 531 
terms of officers, 531 
powers of old officers continued, 531 
filling vacancies, 532 
notice to officers elected, 532 
oaths and bonds of officers, 532 
officers not to be interested in con- 
tracts, 533 
purchase of claims by officers, 533 

Cities of More than 23,000. 

cities governed by act, 597 
elective officers, 598 
elections, 598 
powers of old officers continued, 598 
vacancies in office, 599 
notice to officers elected, 699 
oaths and bonds of officers, 599 
officers not to be interested in con- 
tracts, 600 
purchase of claims by officers, 600 

INCORPORATION AND ORGANIZA- 
TION OF CITY, 

petition for, 60 

order for census, 60 

marshal's assistants, 62 

marshal's return as to census, 62 

notice of election, 62, 64 

election board, 62, 63 

manner and return of election, 63 
town becoming city, record conclusive, 63 

division of cities into wards, 64 

ordinance creating wards, 64 

old cities adopting act, 65 

interest on orders, 65 

old officers and ordinances, 65 

duties of common council in towns, 65 

city officers, 66 

oath of election boards, 70 

law of city elections, 70 



INCORPORATION AND ORGANIZA- 
TION OF CITY— Continued. 

canvass of votes, 70 
inspector's certificate of election of 

officers, 71 

notice to persons elected, 71 

penalty for officer to refuse to serve, 71 

vacancies in office, 72 

term of appointed officer, 72 

cities of 15,000 voters, 72 

councilmen, 72 

aldermen, 72 

legislation by council and aldermen, 73 
separate action of council and board 

of aldermen, 73 

president of board acting as mayor, 74 

sewer tax and districts, 74 

mayor's duties and powers, 75 

election of officers, 74 

president of board of aldermen, 74 

records of board of aldermen, 74 

pay of councilmen and aldermen, 74 
averments unnecessaiy in suits by 

city, 78 
process in suits against railroads, 78 
actions for penalties, 78 
imprisonment for violating ordinance, 82 
duties of clerk, 83 
clerk signing orders, 84 
clerk making duplicate tax list, 85 
assessor's duties, 86, 87 
civil engineer's duties, 88 
street commissioner's duties, 92 
marshal's duties and powers, 92 
marshal has constable's powers, 93 
marshal entitled to same fees as con- 
stable, 93 
city attorney's duties and fees, 96 
treasurer's duties, 97 
duties of treasurer and clerk, 98 
interest on orders, 99 
treasurer's statements and liability, 99 
treasurer's assessments, 99 
collecting delinquent taxes, 100 
lien of taxes, 100 
sale of land for taxes, 101 
notice of sale of chattels for taxes, 101 
redemption of land sold for taxes, 102 
annual settlement of clerk and treas- 
urer, 102 

INCORPORATION OF TOWN, 

survey and map, 747 

census, 748 
survey, map and census made 

pubhc, 748 

application to county board, 748 

hearing and order, 748 

notice to voters, 750 

polls, how long open, 750 

board of election, 750 

election, effect of, 750 

voting place, 753 

opening and closing polls, 753 



INDEX. 



995 



[^References ar 

INCORPORATION OF TOWN— Cont'd. 

inspector's duties, 753 

officers to be elected, 753 

when order for conclusive, 756 

how old town may incorporate, 756 

debts not affected"^, 757 

dissolution of town, 757 

rights and contracts not affected, 757 

INDEBTEDNESS, 

limited, 49 

what constitutes, 49 

payment in installments, 49 

prohibited can not be ratified, 50 

current expenses and current reve- 
nue, 50 
created by contract for water supply, 50 
for fire alarm telegraph, 50 
contract for future supplies, 51 
validity of bonds issued in excess of 

constitutional, 61 

created bv street improvement 
. bonds, " 52 

effect on duty to repair streets, 52 

constitutional limitation on, 138, 173 

constitutional and statutory limita- 
tions distinguished, 175 
small city funding, 178, 179 
authorized may be funded, 179 
unauthorized, legalizing, 179 
constitutional and statutory limita- 
tions distinguished, 478 
limit of, 545, 613 
where territory disannexed, 549 
funding, 672 
bonds for improvements are not city, 725 
that of town limited, 787 
See Debts ; Bonds. 



INDEMNITY, 

where recovery upon lost bonds is 
sought, 

INDEPENDENT CONTRACTOR, 

liability for acts of, 
liability for negligence of, 
duty as to streets, 
liability for defective street. 



171 



138 
161 
237 
261 



INDIANAPOLIS CHARTER, 

damages for change of street grade 
under, 30 

INDICTMENT, 

to prevent encroachment on street, 247 

effect of duplicity in, 868 

failing to keep waiting rooms, 872 

for embezzlement, 875, 876 

for bribery, 877 

officer being interestea in contract, 879 
See Crimes and Misdemeanors. 

INDIRECT TAXES, 

imposing by license, 46 



•e to Pages."] 

INELIGIBLE CANDIDATE, 
votes cast for, 45 

INFANT, 

when liable for damages, 245 

redeeming from sale on precept, 288, 728 
how affected by opening of street, 304 
how affected by condemnation pro- 
ceedings, 498 
condemning property of, 567, 637, 809 

INFECTIOUS DISEASE, 

confining persons afflicted with, 137, 605 

INFERENCE OF NEGLIGENCE, 
there is none, 255 

INFERENTIAL FACT, 

in special verdict, 251 

INFIRMARY FOR POOR, 

power to establish, 169 

INFLAMMABLE MATERIALS, 

regulating location of, 205 

INFORMALITIES, 

effect of in street improvement, 276 

effect of in drainage proceedings, 191 

INHERENT POWER, 

to purchase fire apparatus, 764 

INJUNCTION, 

against illegal ordinance, 13 

to prevent issuing of warrant for 

current expenses, 51 

to prevent enforcement of unconsti- 
tutional statute, 58 
as remedy against ultra vires acts of 

officers, 68 

to prohibit intrusion into mayor's 

office, 76 

to prevent enforcement of void ordi- 
nance, 80 
to prevent collection of illegal tax, 86 
to prevent change of grade, 90 
against ultra vires contract, 118 
to prevent multiplicity of actions, 124 
against slaughter-house, 128 
denying on ground of delay, 139 
to prevent improvement of market 

place, 141 

to prevent erection of building, 143 

to prevent removal of building within 

fire limits, 143 

to protect wharf, 146 

against void assessments, 159 

collateral attack on assessment bv, 159 
collateral attack by. ' 160 

to prevent issue of bonds. 171 

to prevent issue of aid bonds, 190 

as remedy in granting municipal aid. 200 
to restrain collection of illegal taxes. 210 



996 



INDEX. 



\_Beferences c 

INJUNCTION— Continued. 
" against taxes on property illegally 

annexed to city, 212 

to prevent use of land as a street, 224 
to prevent appropriation of railroad 

right of way, 225 

against public corporation making 

certain charges, 228 

to prevent encroachment on street, 247 
to prevent street improvement, 258 

sufficiency of complaint for, 258 

to prevent use of street for market, 259 
to prevent obstruction of street, 260 

delay in asking for, 264 

to prevent sale under precept, 289 

as collateral attack on street improve- 
ment, 293 
when lies to restrain assessment, 294 
to prevent opening of street, 299, 303 
pleading in suit for, 303 
when will not lie to restrain proceed- 
ings, 311 
how tendering of damages affects, 312 
when dissolved by tender, 312 
to prevent vacation of street, 313 
who may maintain to prevent vaca- 
tion of street, 313 
to prevent annexation of territory, 

319, 325 
to prevent collection of taxes in case 

of illegal annexation, 319 

to protect possession of police prop- 
erty, 340 
to protect police property, 437 
when does not lie to enjoin assess- 
ment, 645 
to prevent appropriation of property, 692 
questions available, 709 
to prevent collection of assessment, 

714, 724 
does not lie where there is remedy 

by appeal, 729 

when attack by is collateral, 730, 807 
against lighting contract, 738,777 

does not lie to prevent breach of 

contract, 738 

to restrain raising price of gas, 740 

where improvement unauthorized, 754 
to prevent issue of bonds, 778 

against illegal taxes, 786 

does not lie to control discretion, 790 
to prevent obstruction in street, 798 

when issued against street improve- 
ments, 798 
to prevent wrongful appropriation 

of land, 808 

to prevent taxation of annexed ter- 
ritory, 818 

INJURIES, 

from taking property for street, 300 

See Damages. 

INJURY ON STREET, 

liability of owner of fee, 231 



re to Pages.'] 

INJURY TO CHILD, 

on street, liability, 
negligence of parents, 

INLAND BILLS OF EXCHANGE, 
bonds negotiable as. 

See Bonds. 

INLETS AND OUTLETS, 

to sewers, 
construction of, 
assessments for, 
collecting assessments for, 
notice of proceedings to establish, 
repairs to, 

report of commissioner on comple- 
tion, 
recording survey of, 
blocking and obstructing, 

See Drainage ; Sewers. 

INSANE PERSONS, 
redeeming from sale on precept, 
how affected by opening of street, 
condemning property of, 

410, 567, 637, 
how affected by condemnation pro- 
ceedings, 
redeeming from sale on precept, 

INSPECTIONS, 

power to provide for, 

of articles of food, 

duty in election for incorporation of 

city, 
certificate of election of city officers, 
health department appointing, 
duty of in town election, 
collateral attack on appointment of, 
duty as to town election, 752, 



231 
231 



646 



186 
190 
190 
190 
190 
191 

191 
192 
192 



288 
304 

809 

498 

728 



379 
606 

63 

71 

445 

751 
752 
753 



INSTALLMENTS, 
payment of indebtedness in, 
paying taxes in, 215, 

effect of election to pay in, 
payment for improvement bv, 

417, 421, 571, 
payment of assessments by, 420, 501, 
effect of failure to pay, 
paying assessments for parks in, 
agreement of persons paying by, 
paying entire assessment, 
failure to pay, all due, 
effect of agreement to pay in, 
time for paying, 574, 

right to make prepayment, 
effect of failure to pay, 578, 

paying for sewers by, 
agreement to pay in, 
taxes, effect of failure to pay, 
payment in, 

all persons ma}^ pay by, 
when first due and payable, 



49 
591 
417 

640 

504 

425 

454 

505 

506 

507 

573 

575 

575- 

646 

581 

642 

658 

718 

724 

726 



INDEX. 



997 



\^Beferences are to Pages."] 



INSTRUCTION, 

restricting evidence of subsequent 

repairs, 238 

as to care required at railroad cross- 
ing, 272 

harmless error, 804 

INSURANCE FUND, 

for firemen and policemen, 442, 517 

for policemen, 586 

INSURER AGAINST ACCIDENT, 

city is not, 231 

INSURER OF STREETS, 
city is not, 231 

INTENTION, 

considering that of the legislature, 61 
as affecting dedication, 219, 812 

to dedicate, evidence of, 220 

to dedicate, rebutting, 220 



INTEREST, 

when city orders draw, 

on funds in hands of treasurer, 

rate that bonds shall bear, 

on sinking fund, 

on railway aid bonds^ 

on sinking fund to pay bonds, 

on bonds in payment of subscription 

to stock, 
levving tax to pav that on public 

debt, 
on delinquent taxes, 
on loans, 
on street improvement bonds, 

421, 506, 574, 642 
on bonds, 479, 614, 724 

rate of on bonds, 480 

on street assessment, 503 

on assessments, 604, 719 

on foreclosure of assessment, 507 

rate of on bonds, 546, 613 

on assessments for street improve- 
ments, 571 
how computed on bonds, 574, 575 
on bonds, effect of failure to pay, 578, 646 



98 
104 
170 

177 
199 
199 

202 

209 
216, 362 

388 



where taxes are delinquent, 
on delinquent taxes, 
levying taxes for, 
taxes to pay that on bonds, 
tax levy to pay that on bonds, 
on water-works bonds, 
rate of on assessments, 
rate of on park bonds, 
payment by coupons, 
on school-house bonds, 
See Bonds. 

INTEREST COUPONS, 
when good for taxes, 

INTEREST OF COUNCILMEN, 
effect on contract. 



658, 



590 
688 
672 
673 
674 
695 
718 
743 
778 
914 



674 



113 



INTEREST ON BONDS, 
tax to pay, 

INTEREST ON ORDERS, 

liability of city for. 



779 
65 



INTERFERING WITH CONTRACTOR, 

damages for, 256 

INTERFERING WITH OFFICER, 

as criminal offense, 127 

INTERNAL WATERS, 

power of states over, 7 

INTERPLEADER, 

between persons claiming damages, 311 
where damages claimed by more 

than one person, 412 

city filing, 639 

INTERSTATE COMMERCE, 
power of congress to regulate, 1 
traveling agent selling by sample, 2 
congress no power over, 3 
distinguished from intrastate com- 
merce, 3 
sale in original packages, 4 
telegraph business, 4 
unit rule in taxation, 5 
taxing corporations engaged in, 6 
when jurisdiction of congress over it 

is exclusive, 7 

ordinances interfering with, 124 
validity of ordinance attempting to 

regulate, 137 

sale by sample, 765 

INTERSTATE FERRIES, 

power to regulate, 113 

INTERSECTIONS, 

costs of, 414 

cost of improving, 502 
See Alley Intersections; Street Inter- 
sections. 

INTERURBAN LINES, 
using tracks of street railway com- 
pany, 837 

INTERURBAN RAILWAY, 

using tracks of other company, 848 

power of, 849 

INTOXICATING LIQUORS, 

subject to police regulations, 3 

regulating, constitutional law, 22 

power to regulate sales of, 31 
regulating sale of, 32, 541, 608, 766 

sale on election day prohibited, 70 
power of city to regulate place of 

sale of, 128 



998 



INDEX. 



\_Beferences are to Pages.'] 



INTOXICATING LIQUORS— Continued . 

city license, 129 

sale under license by United States, 129 

effect of license to sell, 130 

fermented cider as, 132 

jurisdiction over, 203 

licensing use and sale of, 381 

town trustees regulating sale of, 765 

screens at doors, 766 

ordinance regulating sale of, 866 



INVALID CONTRACT, 
improvement of street under, 

INVALID TAX SALE, 

refunding money by city, 
rights of purchaser at, 
refunding taxes, 

INVALIDITY OF ORDINANCE, 

as a defense, 

INVESTIGATING COMMITTEE, 

to investigate water-works, 



278 



213 
214 

786 



80 



697 



INVESTIGATING DEPARTMENTS, 

power of council, 477 

by common council, 544, 612 

INVESTMENT OF SINKING FUND, ^ 
power to make, 674 



INVITATION TO CROSS, 
by flagman or gatekeeper, 



270 



IRREGULARITIES, 

curing by legalizing act, _ ^ 61 

waiver of in corporate organization, 62 
effect of in elections, 70 

waiver of in assessments, 159 

effect of in levy of taxes, 210, 786 

effect of in issuing bonds, 173 

effect of in improvement of streets, 253 
when deemed waived, 294 

effect of in street opening, 303 

not reached in collateral proceedings, 708 



IRREPARABLE INJURY, 

necessary to entitle one to an injunc- 
tion, 

ITINERANT DEALERS, 
DOwer to license and regulate, 
towns licensing, 



258 



165 

770 



JAIL, 

transferring prisoners from to work- 
house, 884 

JAILER, 

police matron acting as, 888 



JEOPARDY, 

effect of withdrawal of plea of guilty, 26 
none where conviction procured, 26 

civil and criminal action for same act, 26 
when it attaches, 26 

person not to be put twice in, 26 

JOINT LIABILITY, 
of city and contractor for defects in 

street, 238 

for defective street, 267 



JOURNAL, 

board of aldermen keeping, 

JUDGE, 

ineligibility to other office, 

in election for incorporation of city, 

electing for city court, 

for city court, 

removal of, 

jurisdiction, 

JUDGE OF CIRCUIT COURT, 
appointing real estate appraisers, 
petition to vacate city charter, 

JUDGE OF CITY COURT, 
power to make rules, 



74 



44 
63 
328 
620 
620 
620 



167 

180 



330 



234 
276 
293 
329 



JUDGE PRO TEMPORE, 

in city court, 332 

in police court, powers of, 457, 521, 621 

JUDGMENT, 

in action against railroads, 78 

attempted arrest of where person is 

injured on street, 
order for street improvement is not, 
effect of an appeal from precept, 
confession of in citv court, 
effect of in city court, 329, 330, 455, 620 
on appeal from annexation proceed- 
ings, 389 
mandamus as remedy on, 404 
board of public works, effect, 420 
when final in condemnation proceed- 
ings, 498 
commitment for failure to pay, 554, 624 
appropriating money for, 561, 631 
on appeal in condemnation proceed- 
ings, 568, 
against corporation, 
in condemnation proceedings, 
effect of after notice to defend, 
firemen's pension fund exempt from 
seizure on. 



616 
623 
637 
805 



JUDGMENT AGAINST CITY, 

when abutter bound by. 



900 



243 



JUDGMENT LIEN, 

effect on where land taken for street, 299 



INDEX. 



999 



\_Beferences are to Pages.] 

JUDICIAL ACTION, 

mayors not liable for damages on 
account of, 



JUDICIAL BODY, 
common council is not, 

JUDICIAL EXAMINATION, 

annexation proceedings, 

JUDICIAL FUNCTIONS, 
annexation of territory not exer- 
cise of, 

JUDICIAL NOTICE, 
of organization of cities, 
of wards, 
of census, 

of plat books, 683, 

of incorporation of towns, 
of special and general charters, 
of boundaries, 
of incorporation of cities and towns, 

JUDICIAL OFFICER, 

ineligible to other office, 
mayor as, 

JUDICIAL POWERS, 
how and where vested, 
effect of error in exercise of, 

JUMBO BURNERS, 

use of. 



77 



112 



679 



323 



62 
64 
349 
814 
751 
751 
751 
762 



44 
153 



882 



JUNK STORES, 

power to license and regulate, 541, 608 

JURISDICTION, 

of congress over interstate com- 
merce, 7 
where federal question presented, 20 
mayor's, 76 
on appeal from action to enforce 

penalty, 80 

consent can not confer, 80 

on appeal where validity of ordinance 

questioned, 124 

council proceeding without, 124 

to levy tax on sale of intoxicants, 131 
to enforce wharfage charge, 145 

of drainage commissioners, 152 

to establish sewer outlet, 187 

in constructing levees, 195 

beyond corporate limits, 

203, 378, 406, 469, 538, 633, 741 
as to improvement of streets, 253 

in street opening proceedings, 309 

on appeal in street opening proceed- 
ings, 310 
to annex territory, 317,321 
of city court, 329 
of police court, 456, 520, 620 
beyond city limits as to water, 527 



JURISDICTION— Continued. 

of mayor in criminal matters, 552 

outside of city limits, 605 

after annexation, 678 

in disannexation, 681 

to condemn for water-works, 691 

to contract for sewer, 709 

to order improvement, 710 

on appeal in foreclosure suit, 723 

in incorporation of towns, 749 

collateral attack on, 749 

of violations of ordinances, 781 

to hear violation of ordinances, 782 

of justices to enforce ordinances, 782 
to construct street improvement in 

town, 792 
collateral attack on in annexation 

proceedings, 818 
in annexation proceedings, 818 
of county board to establish high- 
ways, 827 

JURISDICTIONAL FACTS, 

in incorporation of town, 749 

JUROR, 

when taxpayer incompetent as, 27, 252 

right of trial by in civil cases, 27 

negligence as question for, 239, 273, 804 

JURY DUTY, 

firemen exempt from, 744 

JURY TRIAL, 

abridging, constitutional law, 23 

denying in proceedings for condem- 
nation of property, 27 

none in suit to foreclose street im- 
provement assessment, 27 

improper in suit to foreclose assess- 
ment, 722 

JUSTICE OF THE PEACE, 

using mayor's docket, 77 
hearing violations of town ordi- 
nances, 780, 782 



K 



KNOTTED ROPE, 

duty of hotel keeper to provide, 892 

KNOWLEDGE, 

of defective street, effect of, 240 

effect of, contributory negligence, 802 

KNOWLEDGE OF DEFECT, 

contributorv negligence, 240 

duty of travelei^ ^ 803 

degree of care, 803 

KNOWLEDGE OF OBSTRUCTION, 
contributorv negligence, 803 



1000 



INDEX. 



IBeferences are to Pages."] 



LABOR, 

giving prisoner credit for, 781 

furnishing for street improvement, 790 
keeping prisoners at, 884 

See Manual Labok. 

LABOR ON HIGHWAYS, 
exemption from, 828 

LABORERS, 
board of public works employing, 335 

LACHES, 

effect of in asking for injunction, 264 
in objecting to annexation proceed- 
ings, ^ 318 
effect of in objecting to street im- 
provement, 712 
See Estoppel. 

LACHES BY OFFICERS, 
effect of on right to street, 230 

LAMP POSTS, 

contracts and costs for, 436, 582 

LAND, 
sale of for taxes, 101 

for sewers, 152 

payment for by board of public 

parks, 454 

condemning for parks, 740 

See Real Estate. 



LAND NOT ADJACENT, 

annexation of, 



318 



LAND OWNER, 
estoppel to question annexation pro- 
ceedings, 319 



LAPSE OF TIME, 
notice of defects in streets from, 

LARGE CITIES, 
issuing funding bonds, 

LATENT DEFECTS, 

in bridge, 

LAUNDRIES, 

regulation of, 



235 



173 



149 



20 



LAW, 
no vested right in, 33 

to be of uniform operation, 41, 42 

to be general, 42 

construed by the constitution, 56 

effect of failure to enact or enforce, 120 
city judge may practice, 332 

See City Attorney : Department of Law. 



LAW OF ROAD, 

does not apply to streets, 
does not apply to cities, 

LAW OF THE LAND, 

definition of, 



133 

245 



118 



LEASES, 
power of street railway to make, 849 
power of telephone companies to 
execute, 863 



LEGAL PROCESS, 
sale of corporate property on, 



119 



LEGALIZING ACT, 

curing irregularities in organization 
of city, 61 

to validate unauthorized indebted- 
ness, 179 



LEGALIZING PLATS, 

power in reference to, 



683 



LEGISLATION, 

by council and board of aldermen, 73 

LEGISLATIVE AUTHORITY, 

vested in councilmen, 601 
See Common Council. 

LEGISLATIVE DISCRETION, 

as to general law, 40 

LEGISLATIVE INTENTION, 

in construing statutes, 865 

LEGISLATIVE POWER, 
in reference to appointment to office, 40 

no liability for exercise of, 119 

in reference to drainage, 125 

effect of negligence in exercise of, 153 

distinguished from business power, 735 

LEGISLATURE, 

power over municipal charters, 8, 462 

power as to public improvements, 19 

power over public offices, 34 

control over liquor licenses, 34 

can not exercise judicial power, 39 
may not appoint local municipal 

officers, 39 
no right to interfere in matters of 

local government, 39 

local laws forbidden, 40 

classifying cities for legislation, 42 

power over municipal corporations, 49 

power to ratify bonds, 50 

power as to municipal officers, 53 
no power to appoint local municipal 

officers, 67 

ratifying muncipal acts, 115 

delegation of police power by, 119 



INDEX. 



1001 



\_Beferences are to Pages.'] 



LEGISLATUEE— Continued . 

prescribing limits of municipal juris- 
diction, 203 

no power to choose board of public 

works, 334 

power to prescribe notice, 720 

LENGTH OF TIME, 

notice of defective street from, 233 

constructive notice from, 801 

LESSEE, 

rights of union railway company as, 832 

LETTING BIDS, 

power to choose, 277 
See Bids. 

LETTING OF CONTEACT, 

advertising, 277 
notice of, 496, 709, 565, 634 

bids, 565 

collusion, 565 

by board of public works, 634 

LETTING OF PUBLIC WORK, 

notice of, 408 

LEWDNESS, 

disposing of fines for, 887 

LEVEE, 
construction bj^ city, 192 
contract for constructing, 194 
bids for, 194 
payment for constructing, 194 
lien for constructing, 194 
jurisdiction of city beyond limits, 195 
collection of assessments for con- 
structing, 195 
collection of assessments for, 426 
change of, 427, 508 
assessments for change of, 427 
change and construction of, 431 
power to construct, 494 
assessment for, 508, 578, 646 
constructing, 564 
board constructing, 578, 646 

LEVEE ASSESSMENT, 

collecting as taxes, 194 

appeal from, 193 

LEVY FOR TAXES, 

basis of, 360 
See Taxes ; Tax Levy. 

LIABILITIES, 

for failure to keep streets safe, 230 

for obstructions on street, 234 

that of city secondary, 415 

LIBERAL CONSTRUCTION, 

of drainage statutes, 187 

of drainage acts, 191 



LIBERAL CONSTRUCTION-Cont'd 
of street improvement statute, 
of power to make street improve- 



253 



ments, 274 


798 


of transcript on appeal from precept. 


290 


LIBRARIES, 




how^ established. 


926 


chairman and clerk. 


926 


election of directors. 


926 


statement, 


926 


recording statement. 


926 


DOwers, 


926 


Danking forbidden. 


927 


directors elected annually, 


927 


by-laws. 


927 


seal, 


927 


assessments, 


927 


officers. 


927 


quorum, 


927 


vacancies. 


927 


term of directors, 


927 


donations, 


927 


stock. 


927 


voting stock, 


927 


museum. 


928 


fines. 


928 


costs. 


928 


judgment without relief, 


928 


corporations may take stock, 


928 


cities may take stock. 


928 


stock as prizes, 


928 


dissolution, city to manage. 


928 


tax, 


928 


by donation, 


929 


transferring township library, 


929 


to revert to township, 


929 


library associations legalized, 


929 


public, 


929 


directors of public, 


9''9 


tax for limited. 


931 


tax levy by cities. 


931 


incorporation. 


931 


instrument of association, 


931 


recording articles of association, 


931 


powers, 


931 


exemption from taxation. 


931 


gallery of art, 


932 


reading-room. 


932 


park, ' 


932 


free use of in certain cities, 


932 


books and property of county library 


,933 


care and maintenance, 


933 


Droperty listed and labeled. 


933 


loan of library fund. 


933 


property reclaimed. 


938 



LIBRARY TAX, 

laws concerning revived, 

LICENSE, 

requiring of persons in various busi- 
nesses, 
against hawkers and peddlers, 



594 



1002 



INDEX. 



Iliefe7'ences are to Pages.'] 



LICENSE— Continued. 

regulating pawnbrokers, 24 

imposing indirect taxes by, 46 

duty of clerk to register, 83 

granting to operate ferry, 112 

to owneis of vehicles, 128 

by city to sell intoxicating liquor, 129 

when city not estopped by, 130 

not transferable, 131 

for place of amusement, 133 

to hawk and peddle goods, 136 

requiring of auctioneers, 147 

city clerk issuing, 360 

power of council to prescribe, 379 
requiring for different occupations, 

380, 608 

from whom may be required, 380 

mayor revoking, 395 

comptroller issuing, 401, 559 

on vehicles, 407 

power to require, 472, 473, 540 

mayor signing, 484 

power to issue, 539 
power of mayor to revoke or suspend, 551 
paying money received from into 

treasury, 557 

for buildings, 606 

by cities and towns, 669 

limits of charges for, 669 

to ex-Union soldier or sailor, 669 

to furnish natural gas, 739 

requiring of pawnbrokers, 743 

power of town trustees to require, 770 

to sell intoxicants, 765 

LICENSE FEE, 

when treasurer not required to accept, 98 

recovery of, 131 

discretion in levying, 384 

LICENSE ORDINANCE, 

construction of, 384 

LICENSE TAX, 

imposing on telegraph companies, 4 
validity of city ordinance imposing 

on telegraph company, 4 

on telegraph poles, 5 

requiring railroad agent to pay, 5 

vessels on navigable waters, 7 

right of cities to levy on ferries, 8 

imposing on franchises, 13 

how collected, 360 

LICENSEES, 

liability of city for acts of, 107 

abandoning street to, 230 

liability for acts of, 236 
liability for defects caused in streets, 236 



LICENSING BUSINESS, 
power in reference to. 



165 



LIEN, 

for taxes, 100 

for wharfage charges, 145 
of local assessment, 159, 283, 416 

of city tax levy, 207 

acquired at tax sale, 213 
created where shade trees are 

planted, 164 

assessments as, 182 

of drainage assessment, 190 

for constructing levee, 194 

when that of assessment attaches, 280 
for improvement of street, 

280, 283, 500, 511, 712, 716 

for benefits assessed, 306 
of assessment in condemnation pro- 
ceedings, 411, 637 
created by street improvement 

bonds, 422, 577 

in favor of bondholders, 425 

for sprinkling and sweeping, 435 
for sprinkling assessment, 436, 512 

of assessment for parks, 452 

of assessment in condemnation, 499 
of assessments, 503, 718, 723 

of taxes for water-works, 527 

of benefits, 588 

taxes as, 687 

priority of those for improvements, 714 

in favor of contractor, 723 

of street and sewer bonds, 724 

two methods for enforcing, 729 

for taxes, 786 

tax deed prima facie evidence of, 786 

in favor of contractor, 794 

effect where street railway sold, 850 
See Assessments. 

LIEN OF ASSESSMENT, 

notice necessary to validity of, 720 

LIFE INSURANCE POLICIES, 

not subject to taxation, 208 

LIGHT, 

city supplying private consumers 

with, 141 

where street is defective, 239 

paying for out of general fund, 735 
city furnishing to private consumers, 736 

inherent power to contract for, 736 

debt for, 771 

sale of by town, 773 

paying for, 777 
requiring railroads to place at street 

crossings, 834 

street railway furnishing, 855 

as protection against fire, 892 
See Public Lights. 

LIGHT AND AIR, 

easement of, 297 

obstruction of easement of access, 834 



INDEX. 



1003 



LIGHT PLANT, 
power of city to control and operate, 116 

city may own, 141 

power to own, 735 

municipal ownership, 736 

LIGHTING, 

expense of, 140 

tax for, 771 

LIGHTING CONTRACT, 

period of, 140 
injunction against, 738, 777 

action on, 738 

debt created by, 777 

voting for in town, 774 

LIGHTING STEEETS, 

implied power, 140 

petition for, 274 

statute construed, 278 

power of board of public works, 405 

town trustees contracting for, 771 

LIMITS OF CITY, 

jurisdiction beyond, 203 
See BouNDAEiES. 

LIMIT OF DEBT, 

effect of, 174 

LIMITATION OF ACTIONS, 

right of legislature to prescribe, 14 
on nuisance, 163, 710 



\^Beferences are toPages.'\ 

LOANING FUNDS, 

right to recover. 



LIMITATION OF INDEBTEDNESS, 

bonds in excess of, 

See Indebtedness. 

LIQUORS, 

town trustees granting license to sell, li 
See Intoxicating Liquors. 

LIQUOR LICENSES, 

conjfining to citizens of the state, 1 

not contracts, I 

LIST OF TAXABLES, 

assessor delivering to clerk, 

LIVERY STABLES, 

regulating location, 

LOANS, 

power of city to make, 

power to make, 169, 

purposes of, 

ordinance for, 

power of common council to make, 

ordinance should state purpose of, 

interest on, 

temporary, 

limit of, 545, 

making temporary loans, 

tax to pay those on water-works, 

town trustees making, 



51 



105 



87 



469 



214 
479 
169 
169 
387 
387 
388 
479 
613 
546 
()99 
776 



LOCAL ASSESSMENT, 
lien of, 159, 

estoppel to question, 
liability of public square for, 
against railroad right of way, 
against street railway, 
liability of public property to. 
See Assessment. 

LOCAL BOARD OF HEALTH, 
selecting, 670 

how constituted, 744 

See Board of Health and Charities. 



283 
159 
282 

283 
283 

416 



LOCAL CONCERN, 

annexation of territory is, 

LOCAL GOVERNMENT, 

legislature no right to interfere with, 

LOCAL IMPROVEMENTS, 

assessments for, 

notice essential to validity of assess- 
ment for, 
power to levy assessment for, 
assessing agricultural land for, 
assessing church property for, 



320 



39 



19 

25 

282 

282 

282 

See Improvement ; Street Improvements. 

LOCAL LAWS, 

forbidden, 40 

binding on federal courts, 115 

ordinances are, 120 

LOCAL SELF-GOVERNMENT, 

right of people, 39 

selection of municipal officers, 53 

fire department a matter of, 54 

LOCAL SEWERS, 
construction, 508, 647, 700 

manner of assessing for, 580 

See Sewers. 

LOCAL TAXATION, 
when may be levied, 47 

LOCOMOTIVES, 
power to regulate speed of, 147 

LODGING-HOUSES, 

protection against fire, 892 

LOOKING AND LISTENING, 
before crossing street railroad track, 270 



LOOSE BOARD, 

in sidewalk, injury by 

LOST BONDS, 
recovery upon. 



241, 242 



171 



1004 



INDEX. 



LOST PLAT, 
town trustees supplying, 

LOST KECOED, 

effect on ordinance, 



\_Beferences are to Pages.'] 

MAJORITY, 
necessary to pass ordinance, 



819 



110 



LOT OWNERS, 




relying on plat showing streets, 


259 


liability for defective walk, 


261 


estoppel by. 


276 


building sidewalk. 


788 


improvement of sidewalk by, 


802 


See Abutting Owner. 




LOTS, 




meaning of, 


817 


liable to assessment, 


416 


vacation of. 


680 


recording plat of. 


810 


sale of with reference to plat, 


811 


annexation of, 


817 



LOTS WITHIN 150 FEET, 

liable for improvement, 

LOTTERIES, 

duty of police to suppress, 
duty to suppress, 



714 



441 

516 



LOWEST BIDDER, 

letting contract to construct harbor 

to, 181 

sidewalk contract to, 732 

letting sidewalk contract to, 789 

See Bids. 

LOWEST RESPONSIBLE BIDDER, 
letting contract to to construct levee, 194 

LUCRATIVE OFFICES, 

party to hold only one, 36 

illustrative cases of, 37 

definition of, 37 

effect of accepting second one, 37 

ofl&ce of mayor is, 77 

office of councilman as, 107 

LUMBER YARD, 
regulating location of, 606 



M 

MACADAMIZED ROAD, 

city subscribing for stock in, 195 

MAIL TRAINS, 
subject to speed ordinance, 150 

MAIN SEWER, 

costs of constructing, 185 

assessments of cost for, 430 

construction through cemeteries, 430 
See Sewers. 



MAJORITY OF APPRAISERS, 

competent to act, ' 



121 
821 



MANDAMUS, 

against election board, 63 

to compel person to recognize title 

to office, 68 

to compel oflicer to discharge public 

duty, 68 

to compel inspectors to give certifi- 
cate of election, 71 
as remedy against mayor, 77 
to compel reinstatement of city 

attorney, 97 

to compel city treasurer to accept 

license fee, 98 

to compel recognition of common 

council, 106 

to compel commissioners to build 

bridge, 148 

to compel railroad company to con- 
form tracks to grade, 165, 267, 831 
to compel issue of aid bonds, 199 
does not lie to control discretionary 

power, 199 

as remedy in granting municipal 

aid, 200 

to secure removal of obstruction in 

street, 247 

to compel building of bridge, 249 

to secure construction of bridges and 

viaducts, 266 

when suit for not removable to fed- 
eral court, 268 
as remedy against common council, 284 
to secure estimate and precept, 288 
as remedy to compel payment of 

judgment, " 404 

to secure appropriation for judgment, 561 
to compel appropriations for judg- 
ments, 631 
as remedy against officers, 754 
to compel oificers to do dutj^ 759 
does not lie to control discretion, 799, 806 
to' secure certificate of exemption 

from work on highway, 828 

against telephone company, 864 

to secure removal of obstruction 

from street, 868 

to compel levy of special tax, 914 

MANDATE, 
to compel performance of ministerial 
duties, 107 

MANUAL LABOR, 

requiring of prisoners, 

385, 476, 544, 554, 611, 624, 780, 884 
MAP, 

with petition for vacation of street, 31" 
keeping of all sewers, 564 

See Plats. 



INDEX. 



1005 



[Befer 

MAPS AND PLATS, 
rule for construing, 

See Plats. 

MAP AND PEOFILE, 
of harbor, 

MAP OF SEWERS, 

keeping, 

MARINES, 
no right to vote, 

MARINE RAILWAYS, 
right to construct, 

MARKETS, 

right to regulate by ordinance, 
power of city to regulate, 
attempt to use street for, 
prescribing location of, 
town trustees locating and regu- 
lating, 

MARKET GROUNDS, 

improvement of, 

MARKET-HOUSE, 
power of city to direct location of, 
power to erect and establish, 
location of, 
as nuisance, 

MARKET MASTERS, 

power to appoint, 

MARKET PLACE, 

improvement of, 
regulating location of, 

MARKET SQUARE, 

power of city to sell and convey, 

MARRIAGE, 
effect on pending partition, 
record of, 
registration of, 

MARRIED WOMAN, 

when dedication presumed against, 
local assessment against, 
redeeming from sale on precept, 
objecting to plat of her lands, 

MARSHAL, 

duty to take census, 
assistants in taking census, 
as city officer, 
duties and powers of, 
has constable's powers, 
same fees as constables, 
authority as to bail, 
using force in making arrest, 
compensation and salary of. 



ences are to PagesJ] 






MARSHAL— Continued. 




222 


liability for acts of, 


96 




effect of failure to give bond, 


105 




posting ordinances, 


111 




when contract with is invalid, 


114 


181 


serving notice in street opening 






proceeding, 


301 




power to remove obstructions from 




633 


street, 


316 




fees in city court. 


332 




office of abolished, 341, 346 


,352 


86 


sale by for taxes. 


688 




constructing street improvement. 


715 




duties of. 


759 


858 


election of. 


759 




filling vacancy in office of, 


760 




powers of. 


760 


22 


fees of, 


760 


141 


arrests by. 


760 


259 


employing counsel to defend, 


760 


470 


power to collect taxes. 


761 




working prisoners on streets. 


780 


767 


collecting town taxes. 


784 




power in reference to taxes. 


784 




how to collect town taxes, 


785 


166 


letting contract for sidewalk. 


789 




powers of road supervisors. 


828 


127 
144 


MARSHAL'S FEES, 




collecting on behalf of city. 


348 


166 


MASTER AND SERVANT, 




166 


contributory negligence, 
MATERIALS, 


804 


141 


furnishing for street improvements, 

MAYOR, 

Generally. 


790 


141 
605 


executive, administrative and judi- 




cial duties of. 


39 




as judicial officer, 


45 


168 


as city officer. 


66 


president of board of aldermen act- 






ing as, 


74 


223 
595 
662 


duties and powers of, 


75 


remedy to try title to office of. 


76 


jurisdiction conferred upon. 


76 


office of is lucrative. 


77 




pleading and practice before, 7 


7,79 




effect of vacancy in office of. 


77 


, 223 


signing orders, 


84 


283 


as president of council. 


106 


288 


casting vote where tie. 


106 


319 


approval and objections to ordi- 






nances, 


109 




signature to ordinances. 


110 


60 


executing deed for city property. 


168 


62 


signing bonds, 


170 


66 


powers of. 


278 


92 


notice to of defective street, 


233 


93 


signing precept for assessment. 


285 


93 


signing precept. 


28S 


95 


furnishing certificate to board of 




95 


police, 


838 


95 


census taken by, public document, 


349 



1006 



INDEX. 



MAYOR— Continued. 

In Cities of More than 100,000. 
appointing police judge, 371 
calling special meeting of council, 375 
executive authority vested in, 393 
election of, 393 
qualifications of, 393 
vacancy in office of, 39-1 
acting mayor, 394 
duties of, 394 
salary of, 396 
city comptroller acting as, 394 
appointments by, 394 
appointing heads of departments, 397 
appointing comptroller, 400 
appointing city attorney, 403 
appointing board of public works, 404 
appointing civil engineer, 405 
appointing board of public safety, 437 
appointing board of health and char- 
ities, 444 
appointing police judge, 458 

In Cities of Ilore than 50,000. 

approving ordinances, 467 

approving or vetoing ordinances, 468 

powers vested in, 483 

election, term, qualification of, 483 

vacancy in office of, 483 j 

acting mayor, 484 

duties of, 484 

city comptroller acting as, 484 

salary of, 485 

duty of departments to report to, 486 

appointing board of public works, 492 

appointing board of public safety, 512 

appointing board of health, 518 

appointing police judge j^ro tern., 524 

In Cities of More than 35,000. 

presiding at council meetings, 535 

authority vested in, 550 

election "of, 550 

qualification of, 550 

term of, 550 

vacancy in office of, 550 

comptroller acting as, 551 

duties of, 551 

bond of, 551 

salary of, 555 

appointing board of public works, 562 

appointing city engineer, 562 

In Cities of More than 23,000. 

as elective officer, 598 

presiding over council, 602 

approving and vetoing ordinances, 603 

authority vested in, 618 

election of, 618 

qualifications of, 618 

term of, 618 

vacancy in office of, 618 

duties and powers of, 619 

duty to enforce ordinances, 619 



[^Beferences are to Pages."] 

MAYOR — Continued. 



salary of, 624 

appointing heads of departments, 626 

city attorney reporting to, 631 

as member of board of health, 670 

account of fines, 888 
member board trustees firemen's 

pension fund, 894 
president trustees police pension 

fund, 902 

appointing expert accountants, 924 

MAYOR'S COURT, 

fees, 553 

mayor absent, 553 

MEASURE OF DAMAGES, 

from injur}^ by sewer, 162 
for personal injury, 243, 252! 

wrongful appropriation of land, 298 
See Damages. 



MECHANIC'S LIEN, 
liability of city on, 

MEETINGS, 

board of public works, 



119 



334 



MEETINGS OF COUNCIL, 

when and where held, 374 
to be public, 875, 467, 535, 602 
quorum, 467, 535, 602 

MENDICANTS, 

power to punish, 135 

MERCHANT POLICE, 

appointment of, 853 

METHODS OF PROPULSION, 

by street railroads, 846 

METROPOLITAN POLICE AND FIRE 
DEPARTMENT, 

In Cities of 50,000. 
president, 338 
secretary, 338 
bond of'^secretarj'-, 338 
salary of secretary, 338 
appointment of officers and employes, 339 
control of police and fire depart- 
ments, 339 
appointment of officers of fire de- 
partment, 340 
expenses of department, 340 
rules to be made, 341 
powers of police officers, 341 
service of process, 341 
office of marshal abolished, 341 
no fees or rewards to be received, 342 
penalty for interfering with board, 342 
additional patrolmen, 342 
political work prohibited, 342 



INDEX. 



1007 



\_Beferences are to Pages.'] 



METROPOLITAN POLICE AND FIRE 
DEPARTMENT— Continued. 

bouds of officers, 343 

fees taxed and collected, 343 

In Cities of 2 0,000 to 35,000, 

officers and patrolmen, 344 

compensation, 344 

removal of officers, 344 

officers of board, 345 

president of board, 345 

secretary of board, 345 

clerk of board, 345 

rules and regulations, 345 

power and authority, 345 

powers of officers and members, 346 
expenses, how and by whom paid, 346 

municipal process, how served, 346 

office of marshal abolished, 346 

fees of policemen, 347 

compensation of policemen, 347 

penalty for interfering w^ith, 347 

additional patrolmen, 347 

duties as to elections, 348 

bonds of officers, 348 

marshal's fees, 348 

oaths of board, 348 

salary of board, 349 

appointees of board, _ 349 

compensation of appointees, 349 

officers of board, 350 

pay of clerk, 350 

rules and regulations, 350 
abolition of existing boards and 

officers, 350 

control of public property, 351 

powers of policemen, 351 

station houses, 351 

expenses of department, 351 

duties of policeman, 352 

marshal's office abolished, 35i 

fees and rewards, 352 
penalty for interfering with board, 353 

appointing merchant police, 353 

appointing special policemen, 353 

political work prohibited, 353 

bonds of officers, 354 

fees, taxation and payment, 354 

repeal, -^54 



MILEAGE, 

constable's, 



94 
744 
675 



MILITARY DUTY, 
firemen exempt from, 

MINIMUM WAGES, 

for unskilled labor, 

MINISTERIAL DUTIES, 

liability of officers for failure to per- 
form, 67 

liability for negligence in perform- 
ing, ' 107 

mandate to compel performance of, 107 



MINISTERIAL POWER, 

liability for exercise of, 

MINORS, 
condemning property of, 

MISCONDUCT, 

discontinuing pension for, 

MISDEMEANORS, 

ordinance providing penalty for, 

obstruction of street as. 

city can not punish if there is state 

statute, 
jurisdiction of mayor over, 
tampering with voting machine, 
collecting illegal fees, 
violating health laws, 
when obstruction of street is, 
invalid ordinance, 

invalidity of ordinance, 779, 

driving across sidewalk. 

See Crimes and Misdemeanoes. 

MISTAKE, 
reforming contract on ground of, 

MISTAKE OF LAW, 
paying taxes under, 

MITTIMUS, 
constable having for prisoner, 
on commitment to work-house, 

MOB, 

liability for damages caused by, 
judgment for damages caused by, 

MODE OF IMPROVEMENT, 
discretion in determining, 



119 



410 



907 



81 
133 

205 
552 
668 
734 
746 
768 
769 
866 
867 



908 



212 



93 

883 



13 
23 



^99 



MONEY, 
duty of treasurer on collection of, 98 
power to borrow, 169 

purposes for which borrowed, 169 

power of common council to borrow, 

387, 478 
borrowing for parks, 743 

how appropriated by town trustees, 776 
See Bonds. 



MONOPOLIES, 

when unlawful, 

MONTHLY STATEMENTS, 
duty of treasurer to make, 

MONUMENT PLACE, 

street railway prohibited in. 



32 



99 



873 



MORALS, 

power of council with reference to, 381 

power of council to preserve, 541 

ordinances to protect, 609 



1008 



INDEX. 



\Beferences are to Pages.'] 



MORTGAGE, 




MUNICIPAL CORPORATIONS, 




confers vested right, 


34 


delegation of police power to, 


12 


taxation of, 


208 


state control of, 


16 


how exercise of power of eminent 




general incorporating acts, 


40 


domain affects, 


299 


laws operating uniformly on, 


42 


purchasing water-works subject to, 


694 


power of legislature over. 


49 


taxation for payment of that on 




definition of, 


61 


water-works, 


695 


liability for negligence in grading 




power of street railway to execute. 


849 


and improving street. 


89 






liabilit}^ for acts of officers in making 


MORTGAGE LIEN, 




arrests, 


96 


when junior to assessment lien, 


84 


powers possessed by, 


115 


effect on where land taken for street, 


299 


dedication by. 


221 


superior to assessment lien, 


714 


liable for torts of servants, 
when bound by declarations of 


238 


MOTIVE, 




officers, 370 


462 


effect of in passage of ordinance, 


122 


MUNICIPAL CREDITORS, 




MOTIVE POWER, 




rights of on repeal of municipal 




street railway, 


855 


charter, 


9 


MOTORMAN, 




MUNICIPAL DEBT, 




duty of. 


273 


state can not assume. 


47 


' 




limited, 


49 


MULTIPLICITY OF ACTIONS, 




See Indebtedness. 




injunction to prevent, 


124 


MUNICIPAL DISCRETION, 




MUNICIPAL ACTS, 




courts can not control. 


735 


continued by the constitution, 


56 






legislature ratifying. 


115 


MUNICIPAL DUTIES, 




evidence of. 


759 


See Duties. 




MUNICIPAL AID, 




MUNICIPAL ELECTIONS, 




to railroads, 31, 48 


contests in, 71, 


666 


See Aid. 




See Elections. 





MUNICIPAL ASSESSMENTS, 
law governing sales under, 577 

See Assessments. 

MUNICIPAL BOARD OF POLICE, 

how appointed, 39 

appointment of, 54 

MUNICIPAL BODY, 

evidence of act of, 84 

discretion of, 798 

See Common Council. 

MUNICIPAL BONDS, 

See Bonds. 

MUNICIPAL CHARTERS, 

not contracts, 8 

effect of repeal or amendment of, 9 

rights of creditors on repeal of, 9 

right to amend or repeal, 33, 60 

modification and repeal of, 56 



MUNICIPAL CONTROL, 

of street railways, 



843 



MUNICIPAL FRANCHISES, 

as contracts, 9 

corporations occupying streets under, 227 



MUNICIPAL OFFICERS, 

residence of, 
not state officers, 
power of legislature as to, 
legislature no power to appoint, 
See Officers. 

MUNICIPAL ORDINANCES, 
assuming to regulate interstate com- 
merce, validity, 
discriminating are invalid, 
See Ordinances. 

MUNICIPAL POWERS, 

how exercised, 
prescribing mode of exercise, 
party contracting must ascertain, 
how served, 

See Powers. 

MUNICIPAL PROPERTY, 

liable for public improvements. 



43 

44 
53 
67 



2 
20 



116 
116 
117 
346 



207 



INDEX. 



1009 



\_Beferences are to Pages.'] 



MUNICIPAL TAXATION, 

state no concern with, 45 

exempting farm land from, 47 

constitutional law, 206 

See Taxation. 

MUNICIPALITIES, 

states delegating powers to, 7 

consolidation of, 392 

MUEDER, 

not a bailable offense, 27 

MUSEUMS, 450 

admission to in parks, 450 

library association maintaining, 928 

MUSIC, 

regulating on the streets, 125 

MUTUAL RIGHTS, 
where railroad laid in street, 269 



N 

NAME, 
where corporations consolidated, 677 

NAME OF OWNERS, 
in report of commissioners, 304 

NAME OF TOWN, 
changing, 815 

NAME OF STREET, 
power to change, 380 

authority to change, ^ 607 

NARROWING SIDEWALK, 
power in reference to, 799 

NARROWING STREET, 

power in reference to, 799 

NATIONAL BANK STOCK, 

taxation of, 684 

NATURAL GAS, 

regulating use and price of, 739 

increasing price of, 740 

preventing waste of, 882 

NATURAL GAS COMPANY, 

exclusive use of streets, 228 

right of way for, 862 

NATURAL GAS ORDINANCES, 

validity of 123 

NATURAL GAS RATES, 

ordinance regulating, 21 

NATURAL WATER-COURSE, 

constructing harbor on, 180, 181 

damages for obstructing, 258 

CiT. AND To.— 64 



NAVIGABLE WATERS, 

control of congress over, 6, 148 

erecting bridges over, 6 

rights of riparian owner, 146 

NECESSARY ARTICLES, 

town liable for, 776 

NEGLIGENCE, 

in grading and improving streets, 89 

in changing grade of street, 90 

of city in exercising its powers, 107 

in performance of ministerial duties, 107 

in constructing city pound, 135 

of fire department, 144 

in failing to repair bridge, 149 

in violating speed ordinance, 151 

failure to give signals, 151 
in construction of sewers, 

153, 161, 710; 820 
in adopting plans for sewer, 153 
of contractor in building sewer, 155 
in constructing culvert, 157 
in repairing sewers and drains, 157 
liability for that of independent con- 
tractor, 161 
of gas company in use of streets, 229 
of contractor, 238 
of co-servants, 238 
question of fact for jury, 239 
in fixing grade of sidewalk, 241 
allowing coal vault in sidewalk, 241 
in using sidewalk where defect visi- 
ble, 243 
in construction of bridges, 248 
in caring for bridges, 248 
in using bridge, 249 
cities liable for, 254 
in executing street improvement, 255 
in using defective plans for street, 255 
no inference of, 255 
railroad failing to give signals, 268 
of railroad in frightening horses, 268 
in boarding street car, 272 
in remaining on platform of street 

car, 272 
averment of in complaint, 273 
sufficient finding of, 273 
question for jury, 273, 804 
of abutting owner, 384 
in keeping streets, 767 
in improving street, 799 
sufficient averment of in complaint, 800 
damages for, 801 
proximate cause, 801 
leaving unprotected coal hole in side- 
walk, 802 
when that of third person a defense, 804 
opinions not proper as to, 805 
in constructing and repairing bridges, 806 
in tapping sewer, 824 
telephone company attempting to 

contract against, 863 

in failing to^give signals, 869 



1010 



INDEX. 



[^Beferer es are to Pages.'] 



NEGLIGENCE OF FIREMEN, 

liability for, 

NEGLIGENCE OF PARENTS, 
where child is injured, 



326 



231 



NEGLIGENCE PER SE, 
violating ordinance rate of speed, 150 
railroad's failure to give signals, 

268, 869, 870 
NEGOTIABLE BONDS, 
rights of holders of, 172 

See Bonds. 

NEGOTIABLE SECURITIES, 

towns can not issue, 777, 913 

See Bonds. 



NEW CEMETERIES, 
expense of removal to, 
removal to and re-interment iuj 
See Cemetekies. 

NEW DEBT, 
funding bonds do not create, 

NEW TRIALS, 

in city court, 

NEWSPAPER, 
publishing ordinances in, 



704 
704 



174 
331 
110 



NOISE, 
right of railroad companies to make, 268 

NOMINAL DAMAGES, 
for opening street across right of way, 17 



NOMINATION ON PETITION, 
of school commissioners, 



922 



NON-NAVIGABLE STREAM, , 

effect on annexation of territory, 318 

power of states over, 7 

rights of riparian owner on, 146 

NON-RESIDENTS, 

city requiring license of, 3 
imprisonment for debt, 32 
taxing for school purposes, 46 
ordinance discriminating against, 123 
discrimination against, 137 
taxing funds of in hands of receiver, 208 
sale of property of on assessment, 294 
collecting benefits from, 307 
requiring vehicle tax from, 407 
notice to in condemnation proceed- 
ings, 497, 636 
notice to of improvement resolution , 500 
taxing personal property of, 688, 783 
notice to of opening of street, 807 

NON-SUBSCRIBER, 

telephone company charging extra, 864 



NON-USER, 

vacation of street by, 
effect on easement, 

NON-USER OF STREET, 

effect of, 

NOTES, 
taxation of, 



298 
813 



259 



208 



NOTICE, 
essential to due process of law, 19 

kind of to meet constitutional require- 
ments, 19 
of assessment for local improvement, 25 
before taking property, 28 
of election for incorporation of city, 62 
of election of city officers, 64 
of ordinance creating wards, 64 
to person elected as city officer, 71 
sufficiency of to terminate city con- 
tract, 85 
effect of that to street commissioner, 92 
of amount of city taxes, 101 
of sale of chattels for taxes, 101 
of sale of real estate for taxes, 101 
to councilmen, 107 
of termination of contract, 118 
of defective street, 141 
to councilmen notice to city, 149 
of local assessment, 159 
of authority to issue bonds, 171 
of appraisement in condemnation 

proceedings, 182 

in matter of constructing and repair- 
ing docks, 183 
of benefits and damages by sewer 

outlet, 187 

of assessments for constructing inlets 

and outlets to sewers, 190 

of drainage proceedings, 190, 191 

of levee assessment roll, 193 

of defects in streets, 229, 232 

of defect in sidewalk, 233 

from length of time, 233 

to councihnan of defective street, 233 
to street commissioner of defective 

street, 233 

of defects in streets, when pre- 
sumed, 233 
where defects in streets caused by 

third persons, 235 

of acts of licensees, 236 

of obstruction on sidewalk, 242 

by city to wrong-doer, 243 

of defective condition of bridge, 249 

of decay of timbers, 250 

of dangerous excavations, 250 

to wrong-doer to defend, 252 

of improvement Ordinance, 276 

inviting proposals, 276 

giving of sale under precept, 287 

of issuing precept, 294 

to land-owner in opening of street, 300 



INDEX. 



1011 



[Beferences are to Pages.'] 



NOTICE— Continued. 

waiver by appearance, 301 
service on guardian, 304 
before collecting benefits, 307 
to private corporation of street open- 
ing proceedings, 307 
conferring jurisdiction in street 

opening case, 309 

of proposed vacation of street, 313 

of annexation proceedings, 321 

of petition for annexation, 321 

length of in annexation proceedings, 323 

policemen to serve, 352 
bv countv treasurer as to tax dupli- 

■'cate, ' 362 

of tax sale, 366 

of letting of public work, 408 
of condemnation proceedings, 

409, 496, 497 
of assessments, 412 
of improvement, 413 
to delinquents of improvement as- 
sessment, 419 
to holders of bonds, 423 
of sale for special assessments, 424 
to pay assessments, 425 
of adoption of declaratory resolution, 427 
calling for bids, 428 
of construction of sewer, 428 
of assessment for parks, 452 
to persons elected officers, 463 
of appeal from annexation proceed- 
ings, 481 
of letting of contracts, 496 
of assessment in condemnation pro- 
ceedings, 497 
of street improvements, 500 
of improvement resolution, 

501, 569, 579, 640, 647 
of assessment roll, 504 
of sewer assessment, 610 
to officers elected, 532 
of letting of contracts, 565 
of condemnation resolution, 566 
of award of damages in condemna- 
tion proceedings, 566 
of final estimate, 572 
of prepayment of assessments, 575, 576 
by county treasurer in reference to 

city taxes, 590 
of tax sale, 593 
to officers elected, 599 
of letting of contracts, 634 
of condemnation resolution, 635 
of benefits in condemnation proceed- 
ings, 636 
of final estimate in street improve- 
ments, 641 
in reference to taxes, 657 
of tax sale, 660 
by towns, 674 
of petition for annexation, 678 
of vacation of streets, 681 
of water- works election, 690 



NOTICE— Continued. 

of condemnation for water-works, 692 

of election of water-works trustees, 693 

to bidders, 709 

of letting contract, 709 

to objectors to street improvement, 710 

in street improvements, 711 

of hearing on assessments, 718 

right of property owners to, 719 

necessary to validity of assessment, 720 

power of legislature to prescribe, 720 

of sidewalk improvement, 732 

in actions to enforce assessments, 734 

of defect, 738 

to voters of town election, 750 

of corporation election, 752 

of election to vote on ordinances, 775 

of special meetings of voters, 762 

of improvement lien, 788 

of letting of contract, 792 

of defects in street, 800 

effect of that to town trustee, 801 

of opening of street, 807 

waiver of in condemnation cases, 807 

of annexation to town, 818 

of sewer assessments, 820 

of incorporation for building town, 824 

to highway viewers, 826 
to railroad company to construct 

crossing, 830 
of vacation proceedings by union 

railway company, 834 

of easement from user, 859 

of election to vote educational aid, 919 
See Publication 

NOTICE OF LETTING, 

estoppel by standing by, 376 

NOTICE TO DEFEND, 

effect of, 805 



NUISANCE, 

slaughter-house as, 127 

injunction to abate, 128 

saloon as, 130 

municipality liable for, 134 

street dump as, 136 
construction of water-works is not, 139 

building in fire limits, 144 

power to abate, 144 

wooden building as, 144 

created by drainage, 156 

successive actions for, 162 

market-house as, 166 
liability of private corporation for, 236 
objects encroaching on sidewalk, 246 

what will constitute, 246 

street dump as, 246 

limitation of action on, 163, 710 

jurisdiction to abate, 203 

when wooden building may be, 203 

when not abatable, ^ * 256 



1012 



INDEX. 



604 
537 
744 
764 
764 
764 



380 



NUISANCE— Continued . 
power of council to declare, 

377, 383, 469, 476, 
council declaring what constitute, 
abaiting and removing, 670, 

town trustees declaring and abating, 
no estoppel against, 
concurrent remedies against, 

NUMBERING OF HOUSE, 

power to require, 

NUNC PRO TUNC ENTRY, 

in proceedings of common council, 84 

of yeas and nays, 109 

in minutes of common council, 299 

in reference to report of assessors, 808 

o 

OATH, 

duty of officers to take, 55 
election boards to take, 70 
required of city officers, 103 
of sinking fund commissioners, 176 
city commissioners administering, 302 
of city judge, 328 
board of public works, 333 
of police commissioners, 338 
police commissioners taking, 344 
of metropolitan police boards, 348 
of park commissioners, 356 
officers taking, 372 
comptroller and deputy adminis- 
tering, ' 403, 491 
board of public safety administering, 

440, 585 

of members of park commission, 445 

police judge administering, 457 

of elective officers, 464 

city treasurer taking, 518 

comptroller administering, 558 

of officers, 599 

in police court, 621 
power of board of public safety to 

administer, 652 

by clerk, 675 

appraisers taking, 807 

OBJECTIONS, 

when to make to street improve- 
ments, 277 
to city commissioners, waiver of, 300 
to street improvement, 712 
waiver of by appearance, 751 

OBJECTS IN STREET, 

frightening horses, 245, 802 

OBLIGATION OF CONTRACTS, 

state not to pass law impairing, 8 

ordinance impairing, 8 

franchises within rule as to protec- 
tion, 9 
not to be impaired by amendments 
to state constitution, 10 



IBeferences are to Pages.^ 

OBLIGATION OF CONTRACTS— Cont'd. 

not impaired by exercise of police 

power, ' 12, 15 

law impairing is void, 33 



OBSTRUCTION OF EASEMENT, 

damages for, 834 

OBSTRUCTION OF HIGHWAY, 

damages for, 247 

penalty for obstructing, 867 

with cars, 868 

damage to abutting owner, 801 

OBSTRUCTION OF STREET, 

as a misdemeanor, 133 
liability of city for, 134, 234 
presumption as to, 134 
right to punish, 205 
power of cities to prevent, 230 
power to remove obstructions, 230 
presumptions concerning, 235 
injury by, 243 
action to abate, 247 
temporary by building materials, 248 
who may maintain action for, 260 
special injury by, > 265 
by railroad train, 270 
by street railroad, 271 
power to remove, 315, 639 
power of marshal to remove, 316 
specific performance to secure re- 
moval, 316 
power of counsel to prohibit, 471 
requiring removal of, 564 
ordinance prohibiting, 607 
a misdemeanor, 768 
punishment of, 866 
mandate to secure removal, 868 
liability for, 798 
notice of, 801 
knowledge of, 802 
effect of knowledge of, 803 

OBSTRUCTION ON SIDEWALK, 

notice of, 242 

OCCUPATIONS. 

requiring hcenses for, 380, 384, 472, 540 

power to regulate and license, 608 

OFFENSES, 

what ones are bailable, 27 

discontinuing pension for, 907 

OFFICE, 

power of legislature to change, 34 

bribery as disqualification for, 36 

defaulters not eligible to, 37 
effect of pro tempore appointment to, 38 

appointment to, ^ 40 

duration of, ' 54 

officer holding over, 55 

power of legislature over, 67 



INDEX. 



1013 



{Beferences are to Pages.'} 



office-Continued. 
in what sense position of city clerk is, 83 
qualifications for, 664 

conviction of felony vacates, 879 



OFFICEES, 

fees and salaries of, 

illegal to require them elected from 

certain classes, 
person to hold only one, 
impeachment of, 
how chosen, 

not to be selected from classes, 
holding over, 

holding until successor qualifies, 
to take official oath, 
retaining oflice on incorporation of 

city, 
number of those for city, 
salaries and allowances, 
duties and liabilities, 
injunction as remedy against ult7'a 

vires acts of, 
mandamus to compel them to per- 
form their duties, 
right to remove, 
persons charged with notice of author 

ity of, 
presumed to do their duty, 
oath and bond of, 
common council electing, 
expulsion of, 
charges against, 
- power to remove, 

not to be interested in contracts, 

113, 464, 533, 
contracts with are void, 
duty of council to fix salaries of, 
how laches of affects right to street, 
providing for board of public works, 
board of public works appointing, 
police and fire departments, bonds 

of, 
for park commission, 
in city of 100,000, 
effect of declarations of, 
powers and duties of old ones, 
holding over on reorganization of 

city, 
to qualify, 

contracts with prohibited, 
not to purchase claims, 373, 464, 533, 
investigation and impeachment, 
charges against and trial of, 
trial of charges against, 
council voting to remove, 
board of public safety appointing, 

438, 582, 
old oflScers continuing to act, 460, 
city bound by declarations of, 
impeaching and removing, 
penalty for exceeding his authority, 
terms of, 
notice to of election. 



68 

69 
69 
103 
108 
111 
111 
112 

600 
113 
114 
230 
336 
336 

343 
356 
370 
370 
371 

371 
372 
372 
600 

385 
385 
386 
386 

649 
598 
462 
478 
488 
531 
532 



754, 



officers-Continued. 

oaths of, 
bonds of, 

not to receive fees, 
notice to those elected, 
impeaching; 
removal of, 

to be elected in town election, 
not to be interested in contracts 
mandamus as remedy against, 
pay of town officers, 
contracts with town are void, 
fees of in constructing town sewer 
embezzlement by, 
bribery of, 

acting without qualifying, 
interested in public contracts, 
contracts with are void, 
conviction of felony vacates office, 
firemen's pension fund, 
in library association. 
See Impeachment of Officers ; Board of 
Public Works ; Police Officers. 



532, 599 
532, 599 
556, 622 
599 
612 
612 
753 
754 
759 
761 
763 
823 
875 
877 
878 
878 
879 
879 
896 
927 



OFFICER DE FACTO, 
validity of acts of, 



69 



OFFICERS OF FIRE DEPARTMENT, 
appointment of, 340 

OFFICIAL OATH, 
duty of oflScers to take, 55 

OFFICIAL BONDS, 

See Bonds. 

OFFICIAL DUTIES, 

See Duties. 

OFFERING TO SELL VOTE, 

penalty for, 

reward for conviction, 

prosecutions limited, 

OIL COMPANIES, 

right of way for, 

OLD CHARTERS, 
powers of old officers under, 

OLD OFFICERS, 
powers and duties of, 
continuing to act, 
powers under old charters, 
powers of continued, 

OLD TOWN, 
how may incorporate, 

OMISSIONS IN TRANSCRIPT, 
on appeal from precept, 291 

OiMITTED PROPERTY, 
taxing, 215 



873 
873 
874 



862 



463 



371 

460 

463 

531, 598 



756 



1014 



INDEX. 



[^Beferences are to Pages.'] 



OMNIBUSES, 

power to establish stands for, 
levying specific taxes on, 

ONE HUNDRED THOUSAND, 

See Cities of More Than 100,000. 

OPENING AND VACATION OF 
STREETS, 

city commissioners, 
injunction to prevent, 
proceedings in council, 
duty of commissioners, 
hearing and proceedings. 



147 
206 



306, 



report of commissioners, 
action of council on report, 
duty of clerk, 
payment of damages, 
collection of assessments, 
report of collections, 
private corporations affected, 
appeal, 

dismissing appeal, 
jurisdiction of parties, 
no injunction, 
tendering damages, 
vacation of streets, 
proceedings of commissioners, 
change of street on petition of abut- 
ters, 
removal of obstructions, 
plats, 

pending proceedings, 
compensation and damages, 

OPENING STREET, 
appeal from, 
in town, 

duty of commissioners, 
tender of damages, 

OPENING STREETS IN TOWNS, 

power over streets. 



303, 814 
305 
306 
311 
307 
307 
307 
308 
309 
309 
311 
312 
312 
313 



315 
315 
316 
316 
316 



283 
806 
807 
808 



'96 



OPINION OF WITNESSES, 
as to damages by change of grade, 91 
as to damages by street improvement, 799 
not proper as to negligence, 805 



ORAL CONTRACT, 

when valid, 

for purchase of real estate, 



ORAL EVIDENCE, 

as affecting dedication, 

ORDER, 

duty of city clerk to sign, 

mayor signing, 

duty of treasurer to register, 

when they draw interest, 

publication as to payment of, 

forbidden. 



118 
164 



220 



99 
175 



ORDER— Continued . 

for street improvement, 275, 500 
for street improvement, not a judg- 
ment, 276 
comntroller signing and issuing, 

401, 489, 559 

duty of comptroller to issue, 628 

ORDER FOR IMPROVEMENT, 

jurisdiction to make, 710 

ORDER OF COURT, 

on report in drainage proceedings, 189 

ORDER OF INCORPORATION, 

when conclusive, 756 

ORDINANCES, 

assuming to regulate interstate com- 
merce, validity, 2 
regulating sales by sample, 2 
regulating hawking and peddling, 3 
imposing license tax on telegraph 

company 4 

impairing obligation of contract, 8 

becoming contract on acceptance, 8 

as contract, 11 

preventing enforcement of illegal, 13 

regulating gas rates, 21 

fixing water rates, 21 

regulating dogs, 22 

regulating pawn brokers, 24 

penalt}^ for violating, 31 

effect of discriminating, 32 

notice of that creating wards, 64 
remaining in force on incorporation 

of city, 65 
passage by common council and 

board of aldernaen, 73 
effect of affidavit denying publica- 
tion of, 78 
copy not necessary in pleading, 79 
not necessary to file copy with com- 
plaint, 79 
admitting in evidence, 80 
invalidity as a defense, 80 
injunction to prevent enforcement 

of void one, 80 

construction of penal, 80 

are not penal statutes, 81 

willful violation of, 81 

imprisonment for violating, 82 

establishing grade of street, 90 

duty of marshal as to violations of, 92 

no liabilit}^ for failure to enforce, 107 

rules for enactment of, 108 

record of, 108 

yeas and nays on passage of, 108 

approval and objections by mayor, 109 

signing, attesting and recording, 110 

publication of, 110 

posting, 111 
publishing in book or pamphlet form. 111 

admitting in evidence. 111 



INDEX. 



1015 



iBefereiices ar 

ORDINANCES-CoxTiNiTED. 

validity in question, 111 

regulating removal of officers, 111 

salaries should be fixed by, 114 

power of council to enforce, 115 

implied power to enact, 117 

title to, 120 

are laws, 120 

mode of procedure in enacting, 121 

majority necessary to pass, 121 

taking effect in the future, 121 

incorporating prior ordinance by 

reference, 121 

rules for construing, 121 

effect where part valid, 121 

amendment to, 121 

when void for unreasonableness, 122 
validity of discriminating, 123 

when validity of is in question, 124 

punishing statutory offense, 129 

fixing amount of license fees, 131 

requiring removal of garbage, 135 

attempting to regulate interstate 

commerce, 137 

establishing fire limits, 142 

regulating speed of trains, 150 

effect of failure to enforce, 150 

for loan, 169 

power of common council to enact, 204 
wdien validity in question, 205 

validity where there is state statute, 205 
licensing hackmen, 208 

evidence of in personal injury case, 239 
prohibiting digging in streets, 261 

requiring safety gates at railroad 

crossing, 269 

when sufficient for street improve- 
ment, 275 
to prevent obstructions in streets, 315 
to prevent fires, 325 
continuing in force, 369, 462, 530, 597 
passage and signing of, 375 
when may be passed, 375 
publication of penal ordinances, 375 
posting, 376 
publishing in book form, 376, 468, 603 
approval of, 376, 468, 536, 603 
veto of, 376, 468, 536, 603 
yeas and nays on, 376 
regulating slaughter-houses, 384 
validity of discriminating, 384 
void in part and valid in part, 385 
should state purpose of loan, 387 
mayor approving or disapproving, 395 
duty of police force to enforce, 441 
passing to protect health, 445 
authorizing sale of park lands, 449 
discharge of prisoner for violating, 458 
in force on reorganization, 461 
passage of, 466, 467, 468, 469, 535, 003 
signing, 467, 602 
publication of, 467, 536 
yeas and nays on passage of, 467, 469, 604 
recording of, 408, 537, 004 



-e to Pages.'] 

ORDINANCES— Continued. 
validity of one prohibiting slaughter- 
houses, 475 
penalty for violation of, 476, 543, 611 
penalty and imprisonment for vio- 
lation of, 476 
passing over veto, 484 
in reference to improvements, 501 
board of health preparing, 519 
purposes for which council may enact, 537 
duty of mayor to enforce, 551 
mayor vetoing, 551 
action on, 554 
making appropriations, 557 
city attorney prosecuting violations 

of, 561 

board of health preparing, 595 

making appropriations, 602 

publication of, 603 
on what subject may be passed, 604, 605 

imprisonment for violating, 611 
continuing appropriations or tax 

levy, 614 

mayor enforcing, 619 
unnecessary to allege publication of, 623 
city attorney prosecuting violations 

of, 630 
duty of board of health to prepare, 662 
providing for removal of garbage, 670 
providing for planting and protec- 
tion of shade trees, 671 
to protect cemeteries, 703 
order for improvement by, 711 
when sufficient for street'improve- 

ment, 712 
jurisdiction where validity in ques- 
tion, 723 
effect of conflict of, 737 
regulating use and price of natural 

gas, 739 

regulating laying out of parks, 742 

duty of marshal to enforce, 760 

changing grade of street, 767 

power of town trustees to pass, 768 

reasonableness of town ordinances, 769 

same as state statute, validity, 769 

referendum in towns, 774 

for town to issue bonds, 777 
invalidity where there is state 

statute, 779 

when validity not in question, 780 

action for violation of, 781 

proof of, 781 

jurisdiction of violations, 781 

collateral attack on, 782 

repeal by implication, 782 

for sidewalk improvement, 7S8 

requisites of for sidewalk, 789 

as exhibit to pleading, 790 
requiring railroads to place lights 

at street crossings, 835 

requiring street railway to pave, 841 
parol evidence to prove acceptance 

of, 841 



1016 



INDEX, 



\_Beferences are to Pages."] 



ORDINANCES— Continued. 

street railway's rights dependent on, 851 
conferring rights upon water com- 
pany, 862 
when invalid, 866 
See Referendum. 

ORDINARY CARE, 
in constructing sewer, 155 

in discovery and repair of defects in 
streets, 232 

ORIGINAL JURISDICTION, 

in police court, 621 

ORIGINAL PACKAGES, 
regulating sales in, 4 

ORGANIZATION OF CITIES, 

3ee Incorporation and Organization of 
Cities. 

OUTLET, 

as part of sewerage system, 156 

constructing for surface water, 258 



OUT-LOTS, 

annexation of, 

OUT-SWINGING DOORS, 

penalty for not providing. 



817 

880 



OVERSEER FOR THE POOR, 
power to appoint, 169 

OWNER OF FEE, 
when liable for injury on street, 231 

negligence of, 384 



PAIN, 

evidence of expressions of, 239 

PAMPHLET FORM, 
publishing ordinances in, 

111, 376, 468, 603 

PAPERS, 

parties not required to produce, 24 

council compelling production of, 386 

PARCELS, 

selling real estate in for taxes, 101 

sale by to pay for street improve- 
ment, 713 

PARENTS, 

negligence of where child is injured, 231 

PARKS, 

dedication for, 355, 813 

franchises for railway prohibited 
through, 449 



PARKS— Continued. 

grants, conveyances and devises for, 450 

condemning land for, 451, 452 

power to purchase and regulate, 475 

condemning for beyond city limits, 741 

in connection with public library, 932 

appointment of, 355 

term of, 355 

oath and bond of officers, 356 

donations for parks, 356 

'taxes and assessments for parks, 356 

duties, 357 

compensation, 357 

accounts, 357 

reports by, 357 

rules for government, 357 

sale of, 449 
See Board of Park Commissioners ; 
Public Parks. 

PARK PURPOSES, 

local assessment against land dedi- 
cated for, 282 

PARK TAX, 

power to levy, 743 

PAROL, 

acceptance of bid by, 793 

PAROL EVIDENCE, 

to show acts of common council, 84 

of yeas and nays, 109 

of action of council, 109 
not admissible to contradict plat, 810, 813 

to prove acceptance of ordinance, 841 



PART PAYMENT, 

of taxes, 

PARTIAL ANNEXATION, 

improper, 

PARTIAL RECOVERY, 

by contractor, 

PARTICULAR USE, 
effect of dedication for. 



658 
324 
723 
814 



PARTIES, 

to appeal from precept, 290 

in suit to prevent annexation of ter- 

titory, 319 

to action to foreclose assessment, 427 
to suit to foreclose assessment, 714, 722 
in suit to enjoin taxes, 818 

to suits by school corporation, 917 

PARTITION, 

dedication in, 220 

how affected by marriage pending, 223 

PARTITION FENCES, 
power to regulate building of, 

149, 383, 475, 543, 610 



INDEX. 



1017 



[_Beferences are to Pages.'} 



PARTNER, 

sale of liquor by, 



131 



PARTY WALLS, 

power to regulate building, 

149, 383, 475, 543, 610 

PASSAGE OF ORDINANCE, 
yeas and nays on, 109 

PASSENGERS, 
implied invitation to by street rail- 
road, 271 
injury on street railway, 854 
duty to provide waiting rooms for, 872 

PASSIVE ACQUIESCENCE, 

does not amount to dedication, 812 

See Estoppel ; Laches. 

PATROLMEN, 

appointment of, 344 

appointing additional ones, 347 

salaries of, 350 

number to be appointed, 650 
See Policemen. 

PAVING, 
street railway required to make, 841 

PAVING BETWEEN TRACKS, 

requiring of street railways, 846 

PAWNBROKERS, 

requiring license of, 2 

rights to examine goods of, 24 

power to regulate, 204 
licensing, 380, 608 

power to license, 472 

licensing and regulating, 743 

PAY ROLL, 

for policemen and oflScers, 351 

prescribing form for, 560 

PAYMENT, 

for sewer, 186 

for constructing levee, 194 

of aid, 202 

for street improvement, 283 
how that for street improvement 

enforced, 285 
no recovery where voluntarily made, 295 
of damages for opening street, 306 
burden of proving want of, 312 
of expenses of fire department, 340 
of benefits and damages in park pro- 
ceedings, 454 
damages in condemnation proceed- 
ings, 499, 569, 638 
of assessments for street improve- 
ments, 500 
for sprinkling streets, 512 
of school taxes, 592 



PAYMENT— Continued. 

for sewer, how enforced, 
from firemen's pension fund, 
police pension claims, 

PAYMENT OF DAMAGES, 

where street is opened, 

PAYMENT OF SALARIES, 

by comptroller, 

PEACE, 

duty of policemen to preserve, 

PEACE OFFICER, 
marshal as. 



823 
899 
906 



312 



488 



585, 652 



92 



PEDDLERS, 

requiring license of, 2 

cities and towns licensing, 3 

licensing, 136, 380, 472, 608, 765 

when no license required, 669 



PEDESTRIAN, 

duty when about to cross street rail- 
way track, 270 

PENAL ORDINANCES, 

construction of, 80 

publication of, 110, 375 



PENAL STATUTES, 
ordinances are not, 

PENALTY, 
for violating election law, 
for violating ordinance, 31, 

for refusing to serve as city officer, 
actions for, 

action for is a civil action, 
appeal in action to recover, 
nature of for violating ordinance, 
for misapplying sinking fund, 
prescribing for violating ordinances, 
on delinquent taxes, 
for interfering with board of public 

works, 
interfering with police board, 
for interfering with police commis- 
sion, 
policemen violating election law, 
interfering with police board, 
for delinquent taxes, 
contract made with officer, 
limit of, 

issuing warrants beyond appropria- 
tions, 
for default in improvement assess- 
ment, 
for doing political work, 
imposed in police court, 
ofiicevs becoming interested in con- 
tracts, 
publishing ordinances prescribing. 



81 



31 

150 
71 
78 
79 

80 

83 

177 

204 

215 

336 
342 

347 
348 
353 
362 
372 
385 

400 

423 
441 
456 

4iU 
467 



1018 



INDEX. 



\_Eeferences are to Pages.'] 



PENALTY— Continued. 

for violation of ordinance, 476 
where officer exceeds his authority, 488 
treasurer receiving unlawful com- 
pensation, 518 
ordinances imposing, 543 
for issuing illegal warrants, 558, 627 
for failure to pay bonds, 576 
where taxes are delinquent, 590 
for officers being interested in con- 
tracts, 600 
publishing ordinance imposing, 603 
for violating ordinances, 611 
non-payment of improvement bonds, 643 
on delinquent taxes, 658, 688 
for tampering with voting machine, 668 
for violating provision of town 

statute, 675 
for making irregular plats, 672 
where illegal fees collected, 734 
for collecting illegal fees, 734 
violating health law^s, 746 
violating law when voting on ordi- 
nances, 775 
actions to recover are civil actions, 781 
not a debt, 781 
violating statute as to plat, 814 
for non-payment of cost of sewer, 822 
where railroad company fails to 

make crossing, 830 
disposition of that recovered from 

railroad, 830 
for failing to place lights at street 

crossings, 835 
street railway company charging 

unlawful fares, 843 
street railway refusing to issue 

transfers, 843 
street railway charging excessive 

fares, 853 

failing to heat street cars, 857 

for obstructing highway, 868 

for failure to give signals, 871 

go to school fund, 871 

suits for, 871 

for failure of railway to give signals, 871 

failure to destroy weeds and thistles, 872 
failing to provide waiting rooms 

and closets, 872 
failing to provide vestibule street 

cars, 873 

selling or offering to sell vote, 873 

for interfering with electric plants, 881 

setting fire to gas, 882 

to waste gas, 882 

use of jumbo burners, 882 

failure to provide fire protection, 893 

failure to account for pension funds, 907 
See Crimes and Misdemeanors. 

PENDING PROSECUTION, 

effect of repeal of ordinance on, 81, 122 

PENDING SUITS, 

effect of reorganization on, 532 



PENSION, 
for firemen and dependents, 653 

exempt from process, 907 

discontinued for offenses and mis- 
conduct, 907 

PENSION FUND, 

creating for firemen, 653 

how made up, 896 

See Firemen's Pension Fund; Police- 
men's Pension Fund. 



PENSIONERS, 
under former pension law, 

PERISHABLE PROPERTY, 

sale of, 

paying proceeds to owner, 

PERMANENT INJURY, 

measure of damages for, 

PERMANENT OBSTRUCTIONS, 

in streets, 

not authorized in streets, 

PERMISSIVE POSSESSION, 
of street, effect of, 

PERMITS, 

requiring for erection of buildings, 



PERSON, 

corporation as, 

PERSONAL ESTATE, 
implied power of city to sell, 

PERSONAL INJURY, 

caused by dangerous building, 

on bridge, 

negligence of third person contrib 

uting to, 
negligence of third person as a 

defense, 
evidence of defects in streets, 
measure of damages for, 
to person near railroad track, 
where streets not in repair, 
damages for that causing death 

PERSONAL JUDGMENT, 

on foreclosure of assessment. 



900 



889 
890 



298 



134 

857 



229 



142 



16 



164 



143 

148 

235 



236 

239 

243, 252 

269 



797 
871 



723 



PERSONAL PROPERTY, 




seizing for taxes, 


100 


situs of for taxation. 


207 


sale for taxes, 


363 


taxing that of non-resident, 


688 


taxing that of residents and non- 




residents, 


783 


definition of, 


784 



INDEX. 



1019 



\_Beferences are to Pages.'] 



PEST-HOUSES 

power to erect and establish, 144 

power to establish, 475 

power of council to regulate, 543 

PESTILENTIAL DISEASES, 

confining persons afflicted with, 137 

PETITION, 

to be incorporated as a city, 60 
for surrender of charter, 180 
to subscribe for railway stock, 197 
to grant aid by border city, 201 
for street improvements, 273, 706 
making street improvement without, 275 
ordering street improvement with- 
out, 283 
for vacation of street, 313 
for change of street, 315 
for annexation of territory, 321 
sufficiency of for annexation, 322 
for improvement, 413 
amending on appeal in annexation 

proceedings, 679 

for disannexation, 680 

for water-works election, 690 

for vacation of cemetery, 704 
to condemn land for addition to 

cemetery, 705 
street improvement without, 709, 716 
sufficiency of for street improvement, 709 
to submit ordinances to voters^ 774 
for purchase of fire apparatus, 776 
by resident owners for street im- 
provement, 790 
for street improvement in town, 791 
conferring jurisdiction to make 

street improvement, 792 

to open street in town, 806 
to dedicate public square to school 

purposes, 817 

for annexation to town, 817 

for annexation, stating reasons, 819 

by abutters, for highway, 827 

for aid to educational institutions, 918 
nominating school commissioners 

by. 922 

PETITION FOR ANNEXxiTION, 

notice of, 678 

PETITION FOR HIGHWAY, 

by abutting owners, 827 

action on, 827 

power of petitioners, 827 

PETITION TO CIRCUIT COURT, 

in reference to sewer outlet, 188 

PETITION TO GRANT AID, 

effect of action of council on, 201 

PETITION TO SUBSCRIBE FOR 
STOCK, 

decision of council on, 198 



PETITIONERS, 
how counted, 

PETIT LARCENY, 

jurisdiction in, 

fine and imprisonment for, 

PIERS, 
power to establish and construct, 

PIPES IN STREET, 

authorizing them to be laid, 
authorizing inspection of, 
right of water company to lay, 



792 



456 
457 



144 



167 
471 
861 



PLACES FOR PUBLIC ENTERTAIN- 
MENT, 
licensing, 473 



PLACES OF AMUSEMENT, 
license for. 



133 



PLAN, 
adoption of for street improvement, 276 

PLAN AND ESTIMATE, 

for construction or repair of docks, 184 



PLANS AND SPECIFICATIONS, 

as evidence. 



276 



PLANS FOR STREET IMPROVEMENT, 



effect of error of judgment in, 

PLANS FOR SEWER, 
negligence in preparing, 
skill required in, 
by property owner, 
abandonment, effect, 
negligence in adopting, 

PLANK ROAD, 
city subscribing for stock in, 

PLANK ROAD COMPANY, 
consenting to construction of street 
railway. 



255 



153 
154 
155 
155 

820 



195 



854 



PLANK WALKS, 

constructing, 



274, 708 



PLAT, 

show dedication of streets, 217 

dedication by, 218 

how construed, 218 

effect of recording, 218 

purcliaser's right to rely on, 259 

with petition for vacation of street, 313 

on opening or vacation of street, 316 

recording before annexation. 318 

filing in annexation proceedings, 321 

city commissioners to approve, 367 

approval of, 368 

costs of, 36S 



1020 



INDEX. 



\_Beferences are to Pages.'] 



PLAT — Continued. 
power of board of public works to 

approve, 493, 563 

when entitled to be recorded, 563 

of additions to cities and towns, 682 

submission for approval, 683 

recording, 683 

legalizing, 683 

record of, 810 

when not entitled to record, 810 

effect of explanatory note on, 810 
parol evidence not admissible to 

contradict, 810, 813 

how construed, 810 

donation by, 811 

revocation of, 811 

correction of, 811 

dedication of street by, 812 

how acknowledged, 814 

penalty, 814 

imperfect, 814 

supplying lost one, 819 

PLAT BOOKS, 

judicial notice of, 683, 814 

public record, 683 

PLATTED LOTS, 

extending annexation over, 317 

PLATTED TERRITORY, 

annexation, 321, 817 

PLEA OF GUILTY, 

effect of withdrawal of, 26 

PLEADING, 

in suit to recover penalty, 79 
in action for injury by defective 

sidewalk, 242 
freedom from contributory neg- 
ligence, 252 
special injury by obstruction of street, 265 
in suit for injunction, 303 
in suit to prevent annexation of ter- 
ritory, 319 
assessment roll as exhibit, 419 
in suit to collect cost of sidewalk, 790 
in suit on assessment, 796 

PLEADING AND PRACTICE, 

before mayors, 77, 79, 552 

PLUMBING INSPECTOR, 

appointment of, 445, 519, 595, 662 

POLES, 

suburban company not to erect, 839 

POLES AND WIRES, 

in streets, 738 

liability for defects in, 738 

POLICE, 
power of city to establish and regu- 
late, 126 



rules for government of, 612 

control of, 513 

detail of, 515 

duty on making an arrest, 516 

See Metropolitan Police and Fiee De- 
partment. 

POLICE BOARDS, 

legislature providing for appoint- 
ment of, 67 

POLICE COMMISSIONERS, 

appointing humane inspector, 354 

See Metropolitan Police. 



POLICE COURT, 






city clerk, clerk for. 




396 


policemen attending. 




439 


official city court. 




455 


seal, 


455 


520 


change of venue. 




455 


effect of judgments in, 




455 


police judge. 




456 


election of. 




456 


term of. 




456 


bond of, 




456 


penalties imposed. 




456 


act creating constitutional. 




457 


rules. 


457 


521 


oaths. 


457 


,521 


practice. 




457 


appeals. 


457 


521 


judge j9ro tern., 


457 


,521 


powers of. 




457 


docket fees, 




^57 


discharge of poor prisoners, 




458 


vacancy, appointment. 




458 


no fees'^to be received, 




458 


salary of judge, payment. 




458 


clerk, bond, duties, 




458 


bailiff, bond, duties, 




459 


salary of bailiff, 




459 


prosecuting attorney, duties, 


fees. 


459 


witness' fees in, 




459 


process in. 




459 


duties of police force. 




460 


old officers to continue, 




460 


city clerk as clerk for. 




485 


officers of. 




519 


change of venue, 




520 


appointing judge of, 




520 


jurisdiction of, 




520 


appeals from, 




520 


failure to pay fine, 




522 


vacancy in office of police judge, 522 


622 


officer not to receive fees, 




522 


salary of judge, 


522 


622 


clerk of court. 


622 


622 


bond. 




522 


duties. 




522 


bailiff of court, 


522 


622 


duties, 




522 


salary of bailiff, 




623 



INDEX. 



1021 



POLICE COURT— Continued. 
prosecuting attorney, duties, 
witness fees, 
warrants, service, 
arrests by policemen 



duty of mayor until act takes effect, 524 

failure to pay fine, 622 

officers not to receive fees, 622 
See City Court. 



\_Beferences are to Pages.'] 

POLICE OFFICER— Continued. 

523 serving process, 341 
523 bond of, 343, 354 

523 power to appoint, 349 

524 interfering with, 866 
disposing of stolen property, 889 
sale of unclaimed property, 889 
sale of perishable property, 889 



POLICE DEPARTMENT, 

a matter of local self-government, 54 

control of, 339 

expenses of maintaining, 346 

expenses of, 351 

power to prevent interference with, 474 



POLICE FORCE, 

rules governing, 

rules and regulations, 

serving process, 

duties to be performed by, 

duties of, 

control of. 



440, 



duty to suppress gaming houses, 
duty on making arrests, 
police surgeon examining, 



341 
345 

346 

346 

460, 515 

583 
586 
586 
906 



POLICE JUDGE, 

mayor appointing, 371 

election of, 456 

term of, 456, 520 

bond of, 456, 520 

jurisdiction of, 456 
appointing judge pro tern., 457, 460, 524 

filling vacancy in office of, 458 

not to receive fees, 458 
salary of, 458, 522, 622 

mayor appointing, 484 

appointment, 520 

removal, 520 

vacancy in office of, 522, 622 

POLICE MATRON, 

in certain cities, 888 

authority of, 

removal of, 

accommodations for priaoners, 

acts as jailer, 

salary of, 

attendance in courts, 

qualifications, 

recommendations, 

POLICE OFFICER, 
arrest without warrant, 
liability for acts of, 
not city officer, 

criminal offense to interfere with, 
fire engineers as, 
appointment of, 339, 344 

powers of, 341 

arrest without warrant, 341 



888 



889 
889 



94 

96 

126 

127 



POLICE POWER, 

authority of the states, 2 

state delegating to cities, 2 
exercise of does not impair contracts, 12 
delegation to municipal corporations, 12 

right of exercise of, 15 

regulating electric wires under, 17 

regulation of laundries, 20 

exercising over intoxicants, 22 

does not effect vested rights, 34 

delegation by the legislature, 119 
nature of license to sell intoxicants, 130 

abridgment of, 130 

no vested right against, 131 

regulating markets under, 141 

railroads subject to, 150 

control of railroads in streets, 262 

delegation of, 383 

discretion in exercise of, 384 

cleaning streets, "435 

granting use of streets, 740 

control of pawnbrokers, 743 



POLICE PRECINCTS, 
dividing city into, 
creation of, 

POLICE PROPERTY, 

injunction to protect possession of, 
control of, 

protecting by injunction, 
power to regulate and protect, 

POLICE PROTECTION, 

paying for, 

POLICE REGULATIONS, 

subjecting article of interstate com- 
merce to, 

authority of the states to make, 

intoxicating liquors subject to, 

subjects of, 

impounding animals, 

requiring flagmen at railroad cross- 
ing, 

requiring signals, 

POLICE SURGEON, 

duties of, 
examinations by, 

POLICEMEN, 

not to be removed on account of poli- 
tics, 
appointment of. 



438 
513 



340 
351 
437 
542 



391 



16 
135 

152 
869 



906 
90G 



838 
339 



1022 



INDEX. 



\_Beferences are to Pages.'] 



POLICEMEN— Continued . 

not to receive fees or rewards, 342 

power to appoint additional ones, 342 
must not do political work, 342, 353, 441 
not to be removed for political rea- 
sons, 344, 349 
powers of, 351, 439, 514, 584, 650 

pav-roll for, 351 
duties of, 352, 439, 585, 652 

fees and rewards, 352 

board of public safety removing, 438 

hearing charges against, 438 
removal of, 514, 650 

to convey prisoners, 514 

not to interfere in politics, 517 
insurance fund for, 517, 586 

duty as to arrests, 524 

removal and punishment of, 583 
duty as to prisoners, 584, 651 
additional ones, 684, 651 

to wear badges, 585 

terms of, 650 

punishment of, 650 

detail of, 651 

duty on making arrests, 652 

retiring on pension, 904 

POLICEMEN'S PENSION FUND, 

police pension fund, 902 

trustees, 902 

term of office, 902 

powers of board of trustees, 902 

mayor president of board, 902 

treasurer and secretary of board, 902 

duties of officers of board, 902 

president, 902 

treasurer, 902 

secretarj^ 902 

sources from which fund is derived, 903 

investment of funds, 904 
purposes for which fund shall be 

used, 904 

taxation for, 904 
retired members subject to order of 

superintendent, 906 

duties of police surgeon, 906 

examinations by, 906 

payment of claims, 906 

time and place of, 907 

pensions exempt, 907 
penalty for failure to account for 

funds, 907 
pensions discontinued for offenses 

and misconduct, 907 

POLITICAL WORK, 

prohibited on the part of policemen, 342 

policemen not to do, 353 

board of public safety not to do, 441 

POLITICS, 
of sinking fund commissioners, 176 
policemen and firemen not to be re- 
moved because of, 338 ' 



politics-Continued. 

policemen not to be removed be- 
cause of, 344, 349 
officers not to be removed because of, 514 
board of public safety not to interfere 
in, 516 



POLL TAX, 
time for payment of. 



216 



POLLS, 
how long to keep open, 750 

opening and closing in town elec- 
tion, 753 



POLLUTION OF STREAM, 
by sewer, 
power to prohibit, 

POLLUTING WATER, 

power to prevent, 

POOR, 

establishing infirmary for, 

POOR PRISONERS, 
discharge of, 



156 
381 



699 



169 



458 



POSSESSION, 
after tender in condemnation pro- 
ceedings, 182 

POSTING, 

of ordinances, 375, 769 

publishing ordinances by, 468 

POSTING NOTICES, 

of levee assessment roll, 193 

of sale under precept, 287 

of hearing on final estimate, 572 

effect of, 674 

POUND, 

power of city to establish and regu- 
late, 139 



POUND ORDINANCE, 
as police regulation, 

POWDER MAGAZINES, 
power to regulate location of, 



135 



127 



POWERS, 

possessed by municipal corporations, 115 
enumeration of, 115, 116 

contracting party to take notice of, 117 
distinction between, 117 

to enact by-laws and ordinances, 204 
of common council, 377, 604 

board of public works, 

405, 493, 562, 563, 632 
of board of public safety, 437, 649 

of policemen, 439, 584 

of board of park commissioners, 448 



INDEX. 



1023 



[Beferences are to Pages.'] 



POWERS— Continued. 

of police force, 515 

of mayor, 619 

of trustees of towns, 762 

of tovrn building corporation, 825 

of union railway company, ^ _ 832 
street railway company furnishing 

electric power, 855 

of water-works companies, 860 
of telephone companies, 862, 863 

of school commissioners, 922 

of library association, 926 

POWERS OF COUNCIL, 

enumeration of, 377, 469, 475, 537 

POWERS OF GOVERNMENT, 

how distributed, 38 

POWER OF TAXATION, 

nature of, 13 

PRACTICE, 

on appeal in street opening proceed- 
ings, 309 
in police court, 457 

PRECEPT, 

presumption as to regularity, 284 

for collection of assessment, 285 

appeal from, 286 

costs on sale under 287 

mayor signing, 288 

order issuing, 288 

estimate essential to, 288 

redemption from sale on, 288 

injunction to prevent sale under, 289 

contractor's affidavit for, 289 

parties and bond on appeal from, 290 

practice on appeal from, 291 

questions triable on appeal from, 292 

presumption on appeal from, 292 

effect of judgment on appeal from, 293 

deed under sale on, 294 

setting aside sale on, 295 

sheriff to collect, 360 
duty of city treasurer to deliver, 588, 655 

delivering to sheriff, 656 

not necessary under foreclosure, 721 

transcript on appeal from, 727 

duty of treasurer to levy, 727 

applying proceeds of sale on, 728 

fees in sale on, 728 

PRECEPT FOR SALE, 

on street improvement, 726 

PRECINCTS, 

number of voters in, 665 

change of boundaries of, 665 

creating for machine voting, 668 

PROCESS, 

in actions against railroads, 78 
arrest without, 94, 95 



PROCESS— Continued. 

sale of corporate property on, 119 

from city court, 330 

police officers serving, 341 

fees taxed where police officers serve, 343 
policemen serving, 439, 650, 584 

from police court, 459 

service of that from police court, 523 

PRELIMINARY STEPS, 

in incorporation of town, 749 

PREPAYMENTS, 

making on bonds, 423, 507 

PRESCRIPTION, 

corporate rights secured by, 62 

streets by, 217, 221 

street across public square by, 221 

right to use of street not acquired by, 229 
gives no right to maintain nuisance, 246 
incorporation by, 752 

PRESENTING FALSE CLAIM, 



PRESIDENT, 

of board of public works, 335 

of pohce board, 338, 345 

town trustees electing, 756 

trustees police pension fund, 902 

of school trustees, 909 

PRESIDENT OF BOARD OF ALDER- 
MEN, 

how selected, 74 

acting as mayor, 74 

PRESIDENT OF COUNCIL, 

election of, 467 

PRESIDENT PRO TEMPORE, 

selecting for council, 106 

PRESIDING OFFICERS, 

of council, 375 

PRESUMPTION, 

as to incorporation, 62 

that officers do their duty, 69 
that taxes were properly placed on 

duplicate, 86 
as to city contract, 118 
as to regularity of council's proceed- 
ings, . 119 
as to obstruction in street, 134 
in favor of action of city officers, 160 
as to regularity of proceedings of, 164 
in favor of dedication, 218 
of dedication by user, 220 
that street regularly laid out, 227 
as to condition of street, 282 
of notice of defects in streets, 233. 284 
concerning obstructions on street, 285 



1024 



INDEX. 



\_Iieferences are to 



PRESUMPTION— Continued. 

as to preparation of plans for street 

improvement, 255 
where person injured at railroad 

crossing, 269, 831 
as to preparation of specifications, 276 

of good faith, 277 

that ofiicers did their duty, 284 

that estimate properly made, 291 

on appeal from precept, 292 

that street legally opened, 297 
that street is in corporate limits, 710 

as to incorporation, 752 

as to public ofiicers, 755 
as to discharge of duty by appraisers, 821 

PRIMARY ELECTION, 

selling liquor on day of, 70 

PRINCIPAL OF BONDS, 

tax levy to pay, 674 

PRIORITY OF LIENS, 

for improvements, 714 

PRISONS, 

power of city to erect, 163, 669 
See Work-House. 

PRISONERS, 

requiring work of, 82 

liability for board of, 82, 83 

constable taking receipt for, 93 

board of, 163 
requiring manual labor of, 

385, 476, 544, 554, 611, 624, 780, 884 

policemen to convey, 514 

committing to work-house, 554 

duty of policemen to, 584, 651 

authority of marshal to detain, 760 

kept at labor, 884 

punishment of, 886 

credit for work, 886 

PRIVATE CONSUMERS, 

city supplying with light, 141, 736 



PRIVATE CORPORATIONS, 

aid to is improper, 

granting exclusive privileges to, 

liability for nuisance, 

how affected by opening of street, 

PRIVATE OCCUPATION, 

of street, effect of, 



196 
228 
236 
307 



229 



PRIVATE PROPERTY, 

uses for which it may be taken, 28 

exempting from taxation where used 

for educational purposes, 47 

condemning for sewers, 157 

taking for public use, 297 



PRIVATE RIGHTS, 

acquired on strength of dedication, 222 

PRIVATE SALE, 

for taxes, 688, 784 

for taxes, unauthorized, 786 

PRIVATE WATER SUPPLY SYSTEM, 
right to condemn, 13 

PRIVATE WAY, 

change to public way, 224 

PRIVILEGES, 

See Exclusive Privileges. 

PRIVILEGES AND IMMUNITIES, 

of citizens, 14 

secured to citizens by the constitution, 15 
must be equal to all classes, 31 

PRIVILEGES OF FIREMEN, 

enumeration of, 327 

PRO TEMPORE APPOINTMENTS, 

effect of, 38 

PROCEDURE, 

discontinuance of, ' 305 

in making street improvements, 707 

PROCEEDING IN REM, 
abatement of nuisance, 204 

PROCEEDINGS OF COUNCIL, 

presumption as to regularity of, 164 

PROCURED CONVICTION, 

no jeopardy in, ' 26 

PRODUCTION OF BOOKS, 

council may compel, 544 

PROFITS, 

as element of damages in injury by 
defective sewer, 162 

PROHIBITED INDEBTEDNESS, 

can not be ratified, 60 

PROHIBITORY TAX, 

effect of, 129 

PROMISE TO REPAIR, 
effect of relying on, 821 

PROOF, 

to conform to allegations, 267 
jurisdictional facts in incorporating 

town, 749 

where town sues, 761 

of ordinance, 781 



INDEX. 



1025 



\_Beferences are to Pages.'] 

PROOF OF PUBLICATION, PUBLIC ARMS, 

of ordinance, affidavit denying, 78 distribution of, 



PROPERTY, 

compensation for that taken, 27 
exempt from taxation, 158 
board of works preserving, 336 
board of public works condemning, 409 
where cities consolidated, 677 
street railway may sell and convey, 849 
street railway conveying and incum- 
bering, 855 

PROPERTY OF CITY, 

right to alienate, 119 

sale on legal process, 119 

PROPERTY OWNER, 

action by city against to recover 

judgment, 243 
right in street, 247 
when estopped to object to assess- 
ments, 425 
remonstrating against improvement, 429 
hearing as to assessments for parks, 452 
roll of in condemnation proceedings, 566 
right to be heard, 720 
estoppel by standing by, 789, 799 
when liable for damages, 805 
See Abutting Owner. 

PROPERTY QUALIFICATIONS, 

not necessary to hold office, 664 

PROPOSALS, 

notice inviting, 276 

See Bids. 

PROPOSALS FOR BONDS, 
publication inviting, 171 

PROSECUTING ATTORNEY, 
duties and fees in police court, 459 

duty in police court, 523 

suit by to forfeit street railway 
franchise, 847 

PROSTITUTES, 
jurisdiction over, 203 

See Houses of Ill-Fame. 

PROTECTION FROM FIRE, 

See Fire ; Fire Escapes. 

PUBLIC, 

right to use wharves, 146 

dedication is to, 219 

streets held in trust for, 227 
duties of corporations occupying 

streets to, 227 
parks held in trust for, 355 
municipal corporation trustee for, 742 
dedication to by plat, 811 
corporation as trustee for, 813 
duty of telephone company to sup- 
ply impartially, 863 

CiT. AND To.— 65 



PUBLIC AUCTION, 
sale at on precept, 

PUBLIC BUILDINGS, 
purchasing real estate for, 
egress from in case of fire, 
fire escapes. 



PUBLIC HIGHWAY, 

sewei outlet benefiting, 
authority to vacate. 



671 



287 



163 
890 
890 



PUBLIC COMFORT, 
power of council over, 377, 537 

duty of common council to provide 
for, 604 

PUBLIC DEBT, 
taxing to pay interest on, 209 

PUBLIC DRAINS, 

power to construct, 493 

PUBLIC ENTERPRISES, 

power of council over, 382 

PUBLIC FUNDS, 

treasurer loaning, 105 

embezzlement of, 875, 876 

PUBLIC GROUNDS, 

validity of ordinance regulating, 22 

of the state, 56 

power of city to sell and convey, 168 

jurisdiction of town trustees over, 776 

dedication of, 813 

PUBLIC HEALTH, 
power of city to protect, 12 

ordinances to protect, 519 

power of common council to protect, 537 
board has charge of, 595 

See Board of Health. 



187 
312 



PUBLIC IMPROVEMENTS, 

assessments for, 19 

city property liable for, 207 

liability of city for assessments on, 387 

See Improvement ; Street Improvements. 

PUBLIC LIBRARIES, 

tax for, 929 

free use of, 932 
See Libraries. 

PUBLIC LIGHTS, 

power of council or trustees as to, 735 

poles and wires in streets, 738 

right to maintain may be granted, 738 

existing contracts valid, 738 

right of way, 739 
See Lights. 



.026 



INDEX. 



[Beferences a 

PUBLIC MAEKETS, 

regulating under police power, 141 

regulating location of, 605 

PUBLIC MOEALS, 

IDOwer of city to protect, 12 
power of council with reference to, 381 

PUBLIC OFFENSES, 

See Crimes and Misdemeanors. 

PUBLIC OFFICES, 

taking cum onere, 28 
See Offices. 

PUBLIC OFFICER, 
validity of *kct for relief of, 35 
how chosen, 53 
not to be interested in street im- 
provement, 279 
presumption as to, 755 
bribery of, 877 

PUBLIC PARK, 
power to purchase real estate for, 163 

establishing, 740 

condemnation of land, 740 

authority to locate, 741 

assessing damages, 741 

report of commissioners, 741 

payment of damages, 742 

action on report, 742 

appeal, 742 

rules for laying out, 742 

dedication "for, 742 

park tax, 743 

issue of bonds, 743 

See Board of Park Commissioners ; Parks. 

PUBLIC PLACES, 

implied power to light, 117 

power of council over, 379 
power of board of public works to 

control, 406 

sprinkling and sweeping, 434 ! 

power to grant use of, 494 

power of council to close, 542 
requiring removal of structures from, 564 

condemning property for, 635 

power to light, ^ 735 

PUBLIC PROPERTY,- 

no vested right in, 34 

power of citv to regulate, 141 
control of, ' 341, 351 

control and authority over, 346 

liability to local assessments, 416 

power of council to protect, 610 

right to sell, 610 

PUBLIC RECORDS, 

plat books as, 
penalty for stealing, 
destroying, 
altering, 



683, 814 

874 
874 

874 



re to Pages.'] 

PUBLIC SAFETY, 

See Board of Public Safety. 

PUBLIC SHOWS, 

power of city to regulate, 183 

PUBLIC SQUARE, 

power of common council to sell, 164 
street across, 221 
liable for local assessment, 282 
authority to vacate, 312 
liability for improvement around, 792 
liability of county for street im- 
provements around, 795 
dedication of, 813 
vacation of unused one, 816 
using for school purposes, 816 

PUBLIC STREET, 

railroad in, 269 

is public highway, 869 

PUBLIC TRUSTS, 

power of council to receive, 469 

common council receiving, 604 

PUBLIC USE, 

taking property devoted to, 30 

regulating property devoted to, 30 

dedicating real estate to, 219 

taking private property for, 297 

water for free, 698 

appropriating land taken for, 810 

of railroad right of way, effect, 831 
propertv of telephone company 

devoted to, 864 
See Condemnation. 

PUBLIC WAY, 

change of private way to, 224 

PUBLIC WELFARE, 

police power in reference to, 883 

PUBLIC WORKS, 

working prisoners on, 82 

how to be done, 408 

drawings for, 408 

notice of letting, 408 

collusion, 408 
power of board of public works to 

build, 493 

letting contracts for, 565 

See Department ofPubLx_ Works; Board 
OF Public Works. 



PUBLICATION, 

notice of construction of sewers by, 

as to payment of orders, 

as to amount of city taxes, 

of penal ordinances, 

inviting proposals for bonds, 

of statement of city treasurer, 



20 
99 
101 
110 
171 
177 



of notice as to levee assessment roll, 193 



INDEX. 



1027 



IBeferences a 

publication-Continued. 

of delinquent tax list, 216 
of precept for assessment, 286 
of sale under precept, 286 
in opening of street, 301 
before collection of benefits, 301 
as to damages assessed, 312 
of proposed vacation of street, 313 
of proposed annexation to city, 320 
of penal ordinances, 375 
as to assessments for parks, 452, 453 
of ordinances, when required, 467 
of annexation ordinance, 480 
notice to non-resident hj, 500 
of ordinances, 536, 603 
notice by in condemnation pro- 
ceedings, 567 
of hearing on final estimate, 572 
before letting contract, 635 
of adoption of resolution, 710 
as to assessments, 718 
of treasurer's settlement, 759 
notice by, 807 



PUMPING STATIONS, 

for water-works. 



861 



PUNISHMENT, 

excessive not to be administered, 26 

limit of in police court, 621 

See Crimes and Misdemeanors. 



PUPILS, 

vaccination of, 



147 



PURCHASE OF WATER-WOEKS, 

valuation, 694 

subject to mortgage, 694 

PURCHASER, 

relying on recitals in bonds, 173 

at sale on precept, 287 

PURCHASER OF BONDS, 
duty of, 173 

PURCHASER AT TAX SALE, 

rights of, 214 

PURPOSE OF STATUTE, 

considering in construing, 708 

PUTRID ANIMAL AND VEGETABLE 
MATTER, 

requiring removal of, 135 



Q 

QUALIFICATIONS, 

of heads of departments, 
of school commissioners, 



626 
922 



QUALIFICATIONS FOR OFFICE, 

property qualification unnecessary, 664 



re to Pages.'] 

QUALIFICATIONS OF COUNCILMEN, 

enumeration of, 466, 602 

QUALIFICATIONS OF VOTERS, 

enumeration of, 664 



QUARANTINE, 

power of municipality 



147 



QUARANTINE REGULATIONS, 

power of city to establish, 

126, 378, 470, 605 

QUARANTINE STATIONS, . 

right of state to construct, 7 

QUASI-PUBLIC CORPORATIONS, 

regulating charges of, 227 

QUESTIONS, 

triable on appeal from precept, 292 

tried on appeal in street opening 
proceedings, 308 

QUESTIONS ANTEDATING CON- 
TRACT, 

not to be litigated on appeal from 

precept, 292 

QUESTIONS FOR THE JURY, 

negligence is, 273, 804 

QUESTIONS OF FACT, 

implied dedication is, 222 

negligence as, 239, 805 

condition of sidewalk, 242 

constructive notice, 801 
as to what is contiguous territory, 818 

as to way over street, ^ 868 

QUESTIONS OF LAW, 

express dedication is, 222 

injury by vacation of street, 297 

QUIETING TITLE, 

tender in suit for, 258 

against assessment, 714 

QUO WARRANTO, 

to test validity of organization of 

municipal corporation, 61 

requisites of, 62 

to test validity of election, 67 

to try title to office of mayor, 76 

not proper to question annexation, 320 

QUORUM, 

of common council, 

107, 375, 466, 535, 602 
board of public works, 334 

board of public safety. 437. 512, 6-19 

board of park commissioners. 447 

of council, 535, (>02 

directors in librarv association, 927 



1028 



INDEX. 



R 

BAILINGS, 

duty to put up at embankments, 
See Embankments. 



EAILROADS, 

right of state to regulate, 5 

power of states over, 7 

municipal aid to, 31 
taxation of, 46, 210 

township aiding, 53 

process in suits against, 78 

regulating hackmen at depots, 128 

duty at crossings) 151 

citv subscribing for stock in, 195 

aid to, 196 
power to aid is a continuing one, 197 
power under Evansville charter to[aid, 200 

aid to by cities, 200 

constructing culverts in streets, 244 

use of streets, 246 
granting occupancy of streets to, 262 
location of in street, 262, 812 

right of street railroad to cross, 263 
power of council over, 382, 542, 609 

locating through cemeteries, 460 

service of summons on, 623 

granting use of streets to, 743 

constructing in highway, 805 

railroad street crossing, 829 

grading, 829 

failure to obey notice, 829 

penalty, 829 

action to recover penalties, 829 

deposition of penalties, 829 
public use of right of way and depot 

grounds, effect, 831 

union roads, 831 

union railway company, 832 

lights at street crossings, 834 

EAILROAD AID, 

See Aid. 

RAILWAY AID BONDS, 

interest on, 199 

RAILROAD AID LAWS, 

validity, 48 

RAILROAD BRIDGE, 

state taxation of, 6 

RAILROAD COMPANIES, 

unit rule in taxing, 6 

subject to police powder, 150 
damages by constraction of culvert, 159 

dedication of street by, 220 

duty to construct approaches, 266 

duty to fence, 267 

failing to give signals, 268 

not resident freeholder, 391 



IBef^rences are to Pages.l 

RAILROAD COMPANIES -Continued. ^ 
assessment against for improving 

street, 503 

authorizing use of streets by, 633 

duty to give signals, 869 

to destroy weeds and thistles, 871 

duty to keep waiting-rooms, 872 

duty to provide closets, 872 



231 



RAILROAD CROSSING, 
changing grade, 
restoring street, 
maintenance of, 
right of foot passenger at, 
safety gate at, 
contributory negligence at, 
care required at, 
power to provide flagmen at, 
requiring restoration of, 
requiring watchmen or gates at, 
requiring watchmen at, 
work done at cost of railroad, 
duty of company at, 
dedication, 

duty of traveler on approaching, 
signals at, 

See Crossing. 

RAILROADS IN STREETS, 

regulation and control of, 
mutual rights, 

RAILROAD PROPERTY, 

taxing in aid of railroad, 
condemning for street. 



269, 



165 
165 
267 
269 
269 
831 
272 
382 
610 
765 
805 
830 
830 
831 
870 
870 



262 
269 



48 
224 



RAILROAD RIGHT OF WAY, 

taking for street, 13 

opening street across, 17 

assessment against, 159, 283, 723 

right to cross transversely wath street, 225 
taking longitudinally for highway, 225 
highway crossing, 225 

effect of user of, 270 

damages for extending street across, 302 
assessing for street improvement, 793 
effect of public use of, 831 

RAILROAD TRACK, 

opening streets across, 16 

taxation of, 18, 211 

council prescribing grades for, 165 

placing in streets, 262, 610 

personal injury to person near, 269 

power to fix grade of, 474 

improving where it is in street, 503 



RAILROAD TRAINS, 

power to regulate speed of, 
obstructing street, 
obstructing highway, 

RAILROAD YARDS, 
attempting to condemn for streets, 



149 
270 



225 



INDEX. 



1029 



[Beferences are to Pages.'] 



RATES OF FARE, 
on street railway line, 



RATE OF INTEREST, 
on street improvement bonds, 
on bonds, 
on assessments, 

RATE OF SPEED, 

negligence in violating ordinance, 

RATE OF TAXATION, 

common council fixing, 
fixing, 



842 



574 
614 
718 



150 



399 
627 



RATIFICATION, 
prohibited indebtedness incapable of, 50 

of bonds, by legislature, 50 

of municipal acts, by legislature, 115 

of contracts, 118 

of assignment of estimate, 285 

attempted of void contract, 400 

READING ROOM, 

library association maintaining, 928 

in connection with public library, 932 

REAL ESTATE, 
assessor listing for taxation, 87 
lien on for taxes, 100 
how sold for taxes, 101 
redeeming from tax sale, 102 
city can not purchase for school pur- 
poses, 118 
condemning for drainage, 137 
power of city to purchase and hold, 163 
purchasing on credit, 163 
resolution directing purchase of, 164 
implied power of city to sell, 164 
exempting from sale for street im- 
provement, 164 
power of council to provide for drain- 
age of, 



165 
167 
167 
167 



power of city to sell, 
appraisement before sale by city, 
implied power of city to sell, 
holding outside of city for sanitary 

purposes, 168 

purchasing for infirmary for the poor, 169 

appropriating for harbor, 181 

possession after tender, 182 

condemning for levees, 195 

illegally annexed to city, 212 

purchasing on credit, 215 

dedicating to pubhc use, 219 

appropriating for streets, 224, 296 

appropriating for second public use, 224 

levying precept upon, 286 
liability for wrongful appropriation 

of, 298 

payment or tender on appropriation, 312 
power of board of public works to 

hire or purchase, 405 

sale on local assessments, 423 



REAL ESTATE— Continued. 

condemning for sewer, 434 

grant and devise of for parks, 450 
power of board of public works to 

condemn, 493, 562, 632 

taxation in city, 545 

assessment for street improvement, 570 

sale to satisfy local assessment, 576 

delinquent tax list of, 593 

sale for taxes, 660 

condemning for sewers, 701 

appropriating for cemeteries, 705 

power of town to hold, 763 

appraisement for town taxation, 784 

redeeming from sale for town taxes, 786 

assessment for appropriation of, 808 
appropriating that already subject to 

public use, 810 

how annexed to town, 817 
union railway company condemning, 833 
condemning for right of way for gas 

and water company, 859 
power of water-works companies to 

acquire and hold, 860 
right of water company to enter upon, 861 
power of telephone company to 

acquire and hold, 862 

REASONS FOR ANNEXATION, 

stating in petition, 822 

REASONABLE CARE, 

in caring for streets, 234 
in keeping streets and sidewalks in 

condition, 798 

RECEIPT, 

constable taking for prisoner, 93 

RECEIVER, 

taxing funds in hands of, 208 

RECITAL, 

effect of in deed of treasurer, 294 

RECITALS IN BONDS, 

effect of, 52, 172 

purchaser relying upon, 173 

RECITALS IN TRANSCRIPT, 

effect of, 310 

RECKLESS DRIVING, 

liability for, 245 

RECOGNIZANCES, 

proceeds of forfeited, 887 

RECORD, 

that town became a city, 63 

duty of board of aldermen to keep, 74 

keeping of ordinances, 108 

as to vacation of streets, etc., 314 

keeping in city court, 330 



1030 



INDEX. 



\_Eeferences are to Pages.'] 



EEOORD— Continued. 

board of public works keeping, 334, 335 

of ordinances, 376, 468, 537, 604 

right of council to inspect, 386 

council has access to, 544, 612 

of plat, 563, 683 

board of public safety keeping, 582 

of board of public safety, 649 

as evidence of municipal act, 759 

of town building company, 825 

EECORD EVIDENCE, 

of action of council, 109 

EECORD OF COMMON COUNCIL, 

as evidence, 309 



RECORDING PLAT, 

effect of, 

duty to cause entry of, 



218 
810 



RECORDER, 

filing copy of annexation order with, 323 

RECORDER'S OFFICE, 

filing plat of opening and vacation 

of street in, 316 

park board filing descriptions in, 455 

REDEMPTION, 

from tax sale, 102, 213 

from sale on precept, 288, 728 

from sales for local assessments, 416, 644 

from sale on bonds, 715 

from sale on assessment lien, 721 

from sale for town taxes, 786 



REDEMPTION OF BONDS, 
authority for, 

REFERENCE OF REPORT, 
in vacation proceedings, 

REFERENDUM, 

in towns, 

petition for, 

contents of petition for, 

special election, 

regular election, 

majority of votes cast necessary, 

notice of election, 

ballots, 

penalty for making false afiidavits, 

penalty for town ofiicer failing to 

comply with statute, 
election laws apply, 

REFORMATION, 

of contract on ground of mistake, 

REFUNDING BONDS, 

power to authorize and issue, 
issue and sale of, 
power to issue, 



389 



315 



774 
774 
774 
774 
774 
775 
775 
775 
775 

775 
775 



908 



388 
479 
546 



REFUNDING BONDS— Continued. 

common council issuing, 614 

cities and towns issuing, 673 

tax to pa}^ interest and principal of, 674 



REFUNDING TAXES, 

where illegally assessed, 
where tax sale invalid. 



212 
786 



REGISTER OF BONDS, 

duty of comptroller to keep, 

401, 490, 559, 629 

REGULATIONS, 

to prevent fires, 325 

in force on reorganization, 461 

continuing in force, 597 

REINCORPORATION, 

right to, 757 

RELIGIOUS PURPOSES, 
assessments on property used for, 158 

REMEDIES, 

no vested right in, 33 

how statute affects existing, 708 

REMEDY OVER, 
when city has, 252 

REMONSTRANCES, 

on account of sewer outlet, 188 

drainage proceedings, causes for, 188 
against drainage assessment, 188 

against subscribing for railway stock, 197 
against annexation proceedings, 

390, 480, 547, 615, 819 
in condemnation proceedings, 

411, 496, 567, 636, 637 
against improvement, 413, 427 

by property owner, 429 

against street improvement, 500, 712, 733 
against assessment roll, 504 

against sewer, 509 

against sewer assessment, 510 

in contracts for street sprinkling, 511 
hearing against sewers and drains, 579 
against improvement resolution, 640 

REMOVAL, 

as an abandonment of office, 43 

of officers, causes for, 514 

REMOVAL OF GARBAGE, 
contract for, 136 

cities and towns providing for, 670 

See Garbage. 

REMOVAL OF OFFICERS, 

right to, 43 

power of city council, Q^, 478, 612 

city attorney and city engineer, 70 

power as to, 111, 112 



INDEX. 



1031 



[Beferences are to Pages.'] 



EEMOVAL OF OFFICERS— Continued. 
sinking fund commissioners, 178 

by common council, 386 

vote required, 545 



REMOVAL OF TRACKS, 
of street railway, 

RENTAL CHARGES, 
against telephone company, 



851 



864 



REORGANIZATION, 
by-laws, ordinances and regulations 
continuing in force, 597 



149, 



REORGANIZATION OF CITY, 

effect on pending suits, 

REPAIRS, 

duty to make on streets, 

duty to make to wharves, 

duty to make on bridges, 

to sewers and drains, 

making to docks, 

to inlets and outlets to sewers, 

reasonable diligence in making 

allowing improvements to be out of, 

compelling lot-owners to make to 

sidew^alks, 
making at cost of abutter, 
effect of promise to make, 

REPAIRS ON BRIDGES, 
by towns, 

REPAIRS OF BUILDING, 

right to make, 

prohibiting where dangerous, 

power to make, 

REPAIRS ON DOCKS, 
city making, 

REPAIRS ON STREETS, 
by board of public works, 
contracts for, 
assessments for, 
power of town trustees, 
assessing abutting owners for, 
recovery from third person, 



532 



52 
145 

149, 248 
157 



183 
191 
232 
256 

274 

707 
821 



806 



143 
143 
326 



183 



334 
495 
793 

796 
798 
804 



REPEAL, 

of municipal charter, effect, 9, 56, 60 

of rules of council, 120 

power to in ordinances, 121 

by implication, 279, 791 

of city charters, 462 

REPEAL OF LAW, 

effect on street improvement, 295 

REPEAL OF ORDINANCE, 

effect on pending prosecution, 81, 122 
by impHcation, 81, 122, 782 

by passage of another, 122 



REPLEVIN, 
of property sold for taxes, 

REPORT, 

in harbor condemnation proceed- 
ings, 
city commissioners filing, 
park commissioners making, 
duty of city treasurer to make, 
duty of comptroller to make, 
duty of comptroller to keep, 
in water-works proceedings, 
of firemen's pension fund. 



785 



182 
300 
357 
518 

558 
629 

692 

897 



REPORT IN 

INGS, 
correcting. 



DRAINAGE PROCEED- 



REPORT OF ASSESSORS, 
action on, 
appeal from. 



189 



809 
809 



REPORT OF CITY COMMISSIONERS, 
what it should show, 303, 304 

REPORT OF CITY TREASURER, 

estoppel by, 104 

REPORT OF COMMISSIONER, 

in drainage proceedings, 191 

action of council on, .305 

effect of acceptance of, 305 

duty of clerk in reference to, 306 

as to vacation of street, 314 

acting on in street vacation proceed- 
ings, 314 
second one in vacation proceedings, 315 
action on, 809 

REPORT OF ENGINEER, 

on street improvement, 717 

REPORT OF COMMITTEE, 

as evidence, 117 

RES JUDICATA, 
judgment where city notifies abut- 
ting owner of suit, 243 
after notice to defend, 805- 

RESERVATIONS, 
effect of in plat, 811 

RESIDENCE, 

of municipal officers, 43 

as affecting right to vote, 35 

not affected by absence on business 
of state, 36 

RESIDENCE PORTION OF CITY, 

defined, 130 

saloon in, 130 



1032 



INDEX. 



EESIDENTS, 

ordinance discriminating in favor of, 123 

contractor employing, 565 

taxing personal property of, 783 

KESIDENT FKEEHOLDER, 
petition by that city grant aid to cor- 
poration, 200 
railroad company is not, 391 
definition of, 414 

RESIDENT OWNERS, 

petitioning for street improvement, 790 

RESOLUTION, 

city acting by, 120 
directing purchase of real estate, 164 
when sufficient for street improve- 
ment, 275 
for widening street, 298 
to appropriate real estate for street, 305 
mayor approving or disapproving, 395 
notice of adoption of, 427 
before condemnation, 497 
notice of, 500, 635, 647 



[Beferences are to Pages."] 
REWARDS, 



in improvement proceedings, 
of necessity for condemnation, 
for public improvement, 
for sewers and drains, 
adopting survey and plat, 
order for improvement by, 

RESOLUTION OF NECESSITY, 
adoption of, 
notice of, 

RESTRICTIONS UPON STATES, 
as to passage of laws, 

RETAIL LIQUOR DEALERS, 

requiring license of, 

RETIRED MEMBERS OF FIRE 
DEPARTMENT, 

re-examination of, 

RETIRED MEMBERS OF POLICE 
FORCE, 
when subject to orders of superin- 
tendent, 

RETIRING MEMBERS, 

fire department, payment to, 

RETURNS OF ELECTIONS, 
effect of uncertainty In, 



501 
566 
569 
579 
682 
71t 



710 

710 



900 



906 



899 



71 



REVENUES, 
anticipating by temporary loans, 214, 388 
duty of comptroller with respect to, 400 



REVOCATION, 
of dedication, 



222, 811 



policemen or officers not to receive, 

342, 352 
for conviction for selling vote, 873 



RIDING ON STREETS, 
city regulating, 
power to regulate. 



133 
379 



RIGHT OF WAY, 

condemning for street, 224 

what included in, 263 

effect of grant of, 264 

power to grant to street railroad, 270 
acquiring for sewer, 430, 431 

for public lights, 739 

grant of through streets and alleys, 743 
acquiring for gas and water company, 859 
for gas and oil companies, 862 

power of telephone company to 

acquire, 863 

RINGING OF BELLS, 

power to regulate, 538 

RIOTS, 
power of city to quell, 126 

RIPARIAN OWNER, 
rights of, 146 

liability of water company to, 862 

RIVERS, 

power of council to regulate, 112 

defined, 113 

power of council over, 609 

RIVER LANDING, 

dedication of, 813 

ROADS, 

city aiding, 195 

ROADS IN OTHER STATES, 

aid to, 201 

ROAD LABOR TAX, 

town trustees requiring, 796 

ROAD SUPERVISORS, 
no authority over streets of town, 

806, 827 
marshal possessing powers of, 828 

ROAD TAX, 

• credit for on improvement, 793 

ROLL OF ASSESSMENTS, 
in condemnation proceedings, 411 

ROLL OF OWNERS, 
in condemnation proceedings, 636 



INDEX. 



1033 



{^Beferences are toFages.'\ 



ROLL OF PROPERTY OWNERS, 

in condemnation proceedings, 



566 



ROLLING STOCK, 
taxing that of railroad company, 18, 211 

RULES, 

for enactment of ordinances, 108 

power of judge of city court to make, 330 
for park commissioners, 357 

common council prescribing, 375 

power of departments to prescribe, 397 
board of public works adopting, 404 

board of public safety adopting, 437 

police court adopting, 457, 521, 621 

for construing charter, 461, 530, 597 

power of council to adopt, 466, 467 

for government of police, 512 

governing board of public works, 562 
board of public safety prescribing, 

582, 649 
for laying out parks, 742 

for construction of charter, 747 

RULES AND REGULATIONS, 

for police force, 345 
police board adopting, 350 
board of park commissioners adopt- 
ing, 448 
board of public parks adopting, 451 
power of departments to prescribe, 486 
special policemen to obey, 515 
for civil service, 552 
board of public safety adopting, 650 
water-works trustees adopting, 696 
board of health enforcing, 745 

RULES OF COUNCIL, 
repeal of, 120 

RULES OF CONSTRUCTION, 

power to make street improvements, 798 



RUNAWAY HORSE, 

liability for injury by, 



869 



RUNNING FOOT, 
cost of street improvement accord- 
ing to, 279, 712, 793 
assessments according to, 280, 502, 570 



RUNNING HORSES, 

penalty for, 

s 

SAFEGUARDS, 
at railroad crossing, 

SAFETY GATE, 
at railroad crossing, 



880 

151 
269 



SAFETY OF CITIZENS, 
guarding by requiring lights at street 
crossings, 835 



SAILOR, 
free license to, 

SALARIES, 
of city attorney, 97, 560, 

duty of council to fix, 114, 

under Evansville charter, 
board of public works, 

334, 492, 404, 562, 
of police commissioners, 338, 

secretary of police board, 
of police officers and employes, 
of humane inspector, 
power of council to fix, 377, 

of city clerk, 396, 485, 555. 

of comptroller, 400, 488, 

of deputy comptroller, 402, 

of city attorney and assistants, 
clerk board of public works, 
city civil engineer, 
of board of public safety, 

437, 512, 582, 
of county treasurer, 443, 

of board of health and charities, 
of city sanitarian, 

of mayor, 485, 555, 

comptroller paying, 
issuing orders for, 
when payable monthly, 
of city engineer, 493, 562, 

of city treasurer, 
of police judge, 
water-works trustees, 
of wharf master, 
power of council to fix, 
of comptroller and deputy, 
comptroller issuing orders for, 559, 
how paid, 

county auditor and county treasurer, 
of board of health, 594, 

of county auditor, 
of secretary of board of health, 
of police matron, 

SALES, 
in original packages, 
power to regulate, 
for city taxes, 
for assessments, effect of, 
setting aside that on precept, 
for local assessments, 416, 

to pay assessment, 503, 

on assessments, law governing, 
enforcing payment of assessments by 
on street improvement, 

SALE BY SAMPLE, 

power of cities to regulate, 
right to make, 

See Sample. 



669 



630 
604 
114 

631 
349 
338 
339 
354 
469 
625 
628 
491 
403 
405 
405 

649 
661 
444 
444 
624 
488 
489 
490 
632 
518 
522 
624 
528 
637 
558 
628 
560 
594 
661 
661 
745 
888 



4 
142 
213 

294 

295 
, 423 
, 576 

577 
,644 

726 



2 

765 



SALE 



FOR TAXES, 

See Tax Sale. 



1034 



INDEX. 



SALE OF BONDS, 
how shall be done, 171 

how made, 387 

See Bonds. 

SALE OF STREET, 

ultra vires, 229 

SALE ON ASSESSMENT, 
disposal of proceeds of, 425 

SALE ON PRECEPT, 
redemption from, 288 

application of proceeds, 728 

SALOON, 
maintaining in residence portion of 

city, 130 

prohibiting screens in, 132 

SAMPLE, 

regulating sales by, 2 

SANITARY OFFICERS, 

appointment of, 444 

See Board of Public Health and Chari- 
ties. 



\_Beferences are to Pages. 1 

SCHOOL FUND, 
penalties and fines going to, 



SANITARY PURPOSES, 
holding real estate outside of city 
for. 



168 



SANITARY REGULATIONS, 

power to prescribe and carry out, 203 
See Board of Public Health and Chari- 
ties. 
SCALES, 

obstructing street by, 142 

SCHOOL, 
providing separate for white and 

colored children, 14 

separate for colored children, 32 

uniform system of, 41 

levying taxes for, 47 

fixing term of, 910 

control of in certain towns, 911 

town may abandon, 911 

control by township trustee, 911 

collecting taxes for, 912 

SCHOOL BUILDINGS, 

issuing bonds for, 912 

See School-Houses. 

SCHOOL COMMISSIONERS, 

limited as to tax levy, 175 

payments to, 364 

monthly settlements with, 364 

See Board of School Commissioners. 



SCHOOL CORPORATION, 

designation of, 
powers of, 
contract powers, 
maintaining suits, 



908 
908 
909 
917 



SCHOOL-HOUSE, 
bonds for, 
contract for, 

power of town trustees to build, 
issuing bonds to build, 
fire escapes for, 

civil township no authority to con- 
tract for, 
location of, 

outside of corporate limits, 
abandoning contract for erection, 

SCHOOL-HOUSE BONDS, 

issuing, 

use of proceeds, 
levying special tax to pay, 
effect where school-house outside 
corporate limits, 

SCHOOL PROPERTY, 

vested right in, 
city no power to purchase, 
title where corporations consoli- 
dated, 
school corporation must buy, 
management of, 
conveying to township, 
title to, 
title to on annexation, 

SCHOOL PURPOSES, 

taxing non-resident for, 

purchasing real estate for, 

county treasurer collecting taxes for, 

levying taxes for, 

dedicating public square to, 

corporations for, 

special tax for, 

SCHOOL REVENUE, 
disposing of special, 



871 



52 

52 

770 

778 

891 

909 
914 
914 

915 



913 
913 
913 

914 



34 
164 

908 
908 
910 
911 
915 
916 



46 
118 
358 
361 
816 
908 
913 



911 



SCHOOL TAXES, 

power to levy, 42 

count V treasurer taking credit for, 364 

payment of, 592, 659 

payment of delinquency in, 592 

laws concerning revived, 594 

settlement for, 658 

SCHOOL TOWNSHIP, 
reforming contract of because of 

mistake, 908 

implied condition in transfer to, 916 

reimbursing after annexation, 916 

SCHOOL TRUSTEE, 

power of council to compel report by, 164 

appointment, 527 

oath, 527 

bond, 527 



INDEX. 



1035 



\_Beferences are to Pages. '\ 



SCBi:)OL TRUSTEE— Continued. 

compensation, 527 
duties, 527, 910 

reports of moneys received, 528 

town trustee eligible as, 754 

in cities and towns, 909 

organization of board of, 909 

lucrative office, 910 

managing school property, 910 

SCREENS, 

prohibiting in saloons, 132 
no power to require at saloon doors, 766 

SCUTTLES, 

power to regulate location of, 379 

SEAL, 

duty of city to adopt, 112 
attaching to precept for assessment, 285 

of city court, 329 
of police court, 455, 520 

of town, 763 

of telephone company, 862 

for library company, 927 

SEALED PROPOSALS, 

for public work, 428 

for constructing local sewers, 508 

notice inviting, 579 

on contracts, 635 
See Bids. 

SEAMEN, 

no right to vote, 36 

SEARCH WARRANT, 

how to procure, 24 

SECOND-HAND STORES, 
power to license and regulate, 541, 608 



SECOND IMPROVEMENT, 
discretion in making, 



SECOND PUBLIC USE, 
appropriating land for, 
when taking for authorized, 

SECOND REPORT, 
in vacation proceedings, 

SECONDARY LIABILITY, 

city's, 

of city on assessments, 

SECRETARY, 

of police board, 
for board of health, 
trustees police pension fund, 
of school trustees. 



789 



224 

225 



315 



415 
725 



338, 345 
744 
902 
909 



SECRETARY OF BOARD OF HEALTH, 



appointment of, 
salary of, 
duties of, 

SECURITY FOR ARMS, 

executing, 

SECURITY OF CITIZENS, 

guarding by requiring lights at 
street crossings, 

SELLING VOTE, 



744 
745 

745 



671 



835 



reward for conviction, 
prosecutions limited, 
penalty for. 


873 
873 
874 


SEPARATE FUNDS, 

duty of treasurer to keep, 


421 


SERVANTS, 

liability for torts of, 


238 


SERVICE OF PROCESS, 

by police officers, 
from police court, 
in suits against corporations, 


341 
459 
653 



SERVICES, 
compensation for those taken, 

SETTLEMENT, 

city treasurer making, 

by city treasurer, procedure, 

with county auditor, 

SETTLING BASINS, 
for water-works, 



27 



359 
359 
363 



861 



SET-OFF, 
not proper on appeal from precept, 292 

SEVENTY THOUSAND, 

See Cities op Seventy Thousand. 



SEWER ASSESSMENT, 




evidence in action to enforce, 


84 


collateral attack on. 


160 


laws applicable to, 


431 


when void, 


718 


SEWER BONDS, 




issue of, 


724 


lien of, 


724 



SEWER CONNECTIONS, 

right to make, 



160 



regulating making of, 166, 380, 472, 607 



SEWER DISTRICTS, 

power to establish, 
assessments in. 



74 
430 



1036 



INDEX. 



\Beferences are to Pages.'] 



SEWER DRAINS, 

power to construct and regulate, 152 

SEWER ESTIMATES, 

what must contain, 718 

SEWER MAP, 
keeping, 633 

SEWER OUTLET, 
remonstrances on account of, 188 

SEWER PRIVILEGES, 
paying for, 391 

SEWER TAX, 

power to levy and collect, 74 

SEWERAGE, 
included in drainage, ■ 187 

power of board of public works to 

provide, 406 

SEWERS, 

notice of construction of, 19 

notice of construction by publication, 20 
authority to construct, 152 

lands and easements for, 152 

how built and paid for, 153 

as part of street improvement, 153 

city not liable for, 153 

assessment for, 153, 158 

liability for negligence in construct- 
ing, 153 
negligence in adopting plans for, 153 
damages for negligent construction, 154 
contributory negligence in injuries 

by, 154 

capacity of, * 154 

skill required in plan for, 154 

liability in construction of, 154 

evidence of defective plan, 155 

negligence of contractor in building, 155 
who can recover damages on account 

of defective, 156 

outlet as a necessary part of, 156 

pollution of stream by, 156 

duty to repair, 157 

providing for extraordinary freshets, 158 
property exempt from assessments 

for, 158 

permit to tap, 160 

contractor trespassing upon abutting 

lands, 162 

power to construct, 185, 493 

cost of constructing, 185 

in cities of less than 35,000, 185 

enlarging, 185 

constructing inlets and outlets, 186 

railroads constructing in streets, 244 

right to dig trench in alley for, 261 

powers of city commissioners, 296 

power of board of public works over, 405 
as part of street improvement, 415 



SEWERS— Continued. 
issuing bonds to pay for, 422 

collection of assessments for, 426 

power of board of public works to 

establish, 427, 632 

area assessed for, 428 

notice of construction of, 428 

how costs of paid, 429 

powers to construct a continuing one, 429 
condemnation to secure right of way 

for, 430 

assessment roll for, 431, 580, 581 

constructing outside of city. 432 

condemning real estate for, 434, 701 

costs of, assessments, 509 

estimating costs of, 509 

costs of general ones, 510 

power to seize ground for purposes 

of, 
general power to construct, 
board of public works constructing, 
manner of assessing for local sewers, 
power of board to construct, 
how cost of general sewers paid, 
collecting assessments for, 
power to build continuous, 
assessment for in cities and towns, 
where may be constructed, 
converting ditches and drains into, 
city constructing, 

damages for negligent construction, 
apportioning costs of, 712 

effect of failure of town to provide, 
negligence in constructing, 
See Main Sewer. 

SEWERS AND DRAINS, 

advertising for bids for, 

SEWERS IN TOWNS, 
power over, 

proceedings to establish and con- 
struct, 
order to appraisers, 
majority may act, 
schedule of assessment, 
apportionment of cost, 
collection of cost, 
penalty for non-payment, 
how payment for enforced, 
officers' fees, 
superintendent, 
engineer, 

town may pay part of cost, 
terms of letting, 
protection of, 
tapping, 
how act to be construed. 



<l 



562 
563 

579 
580 
646 
647 
647 
700 
701 
701 
702 
710 
710 
713 
767 
820 



580 



820 

821 
821 
821 
822 
822 
822 
822 
823 
823 
823 
823 
823 
823 
823 
823 
824 



SEWERS IN TOWNS AND CITIES. 

local sewers, 700 

general sewers, 700 

assessments for, 701 

construction of, 701 

condemnation of land for, 701 



INDEX. 



1037 



[Beferences are to Pages.'] 



SHADE TREES, 

power to regulate planting of, 164 

providing for planting of, 671 

town trustees planting, 771 

SHAREHOLDERS, 

voting to convey property of street 

raihvay, 850 

SHARES OF STOCK, 

taxation of, 684 

w^here taxable, 685 

SHERIFF, 

collecting assessments, 360 
making sale under local assessment, 416 

delivering precepts to, 588, 656 

notice by to highway viewers, 826 



SHOOTING AT MARK, 
penalty for, 

SHOWMEN, 
requiring license of, 

SIDE TRACKS, 
laying in street, 

SIDEWALK, 

changing grade of, 89, 

as part of street, 89, 

power to prevent obstruction of, 
driving over, 

duty to keep clear and safe, 
power to establish and construct, 
power over, 

liability for failure to keep safe, 
notice of defect in, 
knowledge of ditch near, 
liability for damages caused by de- 
fective, 
snow and ice on, 
grade of, 

notice of obstruction on, 
condition a question of fact, 
lot-owner's liability, 
visible defect in, 

complaint on account of obstructed, 
bicycle on, 

structures overhanging, 
objects encroaching on as nuisance, 
telephone conduits under, 
compelling lot owners to repair, 
as part of street, 

power to regulate use of, 380, 

improving on one side of street, 
power to regulate use of, 
order for improvement, 
lowest and best bidder, 
power of council over, 
construction of, 
improving part of, 



880 



263 



564 
226 
133 
133 
134 
216 
226 
230 
233 
240 

241 

241 
241 
242 

242 
242 
243 
244 
244 
246 
246 
260 
274 
276 
607 
414 
472 
500 
501 
539 
708 
710 



SIDEWALK— Continued. 

assessing cost of, _ 730 
assessments where streets are diago- 
nal, 731 
power of trustees to improve, 767 
control of town trustees over, 768 
part of street, 768 
town trustees building, 788 
power to determine width, 788 
abutting owner making, 788 
power to fix grade of, 788 
requisites of ordinance for, 789 
owner failing, town makes, 789 
collecting cost of constructing, 789 
duty to keep in safe condition, 798 
power to narrow, 799 
liability for excavations under, 801 
improvement by lot-owner, 802 
defective cover for coal hole in, 802 
driving on, 866 
misdemeanor to drive across, 867 

SIDEWALK IMPROVEMENTS, 

in certain cities, 731 

grade, 732 

contract, 732 

notice, 732 

contract to lowest bidder, 732 

assessments, 732 

foreclosure, 732 

contractor's receipt, 732 

change of grade, 732 

under other laws, 733 

ordinance for, 788 

grades for, 791 

SIGNALS, 
negligence in failure to give, 151, 869 

placing at dangerous sidewalk, 243 
railroads failing to give at street 

crossings, 268 

duty of railway to give, 869 

when should not be given, 870 
negligence per se in failing to give, 870 

at railway crossings, 870 

SIGNING ORDINANCES, 

essential, 110 

SILENCE, 

estoppel by, 799 

SINKING FUND, 

how paid out, 177 

penalty for misapplying, 177 
levying tax for, 179, 214, 672 
for paying donation to road, bridge, 

etc.,' " 196 

to pay bonds, 199 

to pay aid bonds, 202 

to pay water-works debt, 596 

investment of, 674 



1038 



INDEX, 



\_Beferences are to Pages.'] 



SINKING FUND COMMISSIONERS, ^ 

appointment of, 176 

politics of, 176 

oath and bond of, 176 

election of, 176 

treasurer furnishing statement to, 177 

purchasing bonds, 178 

compensation of , 178 

removal of, 178 

vacancies in, 178 

SINKING FUND TAX, 

right to levy, 214 

SITUS OF PERSONAL PROPERTY, 

for taxation, 207 

SLAUGHTER-HOUSES, 

regulating location of, 126, 469 

power of city to direct location of, 127 
enjoining location of, 128 

power to regulate location of, 377, 384 
validity of ordinance prohibiting, 475 
as nuisances, 764 

SLEEPING CAR COMPANIES, 

unit rule in taxing, 6 



SNOW AND ICE, 
on sidewalk. 



241 



SOAP FACTORIES, 
regulating location of, 126, 377, 469 



SOLDIERS, 

no right to vote, 
free license to, 



36 
669 



SOVEREIGN POWERS, 
municipal corporation possesses, 61 

SPECIAL ACT, 

corporations not to be created by, 48 



SPECIAL ASSESSMENTS, 
list of delinquencies. 

See Assessments. 



423 



SPECIAL BENEFITS, 

meaning of, 303 

when sewer assessments not based 
on, 430 

See Benefits. 

SPECIAL CHARTER, 

no power to alter or amend, 13 

amendment to, 41, 49, 56, 60 

judicial notice of, 751 

street railway in cities operating, 839 



SPECIAL COUNSEL, 
city may employ. 

See City Attorney. 



97 



SPECIAL DAMAGES, 
by change of street grade, 

SPECIAL ELECTION, 
selling liquor on day of, 
general law governing, 
to fill vacancy in office, 
to elect mayor, 



90 



70 
870 
371 

894 



to fill vacancy in office of mavor, 

483, 550, 618 
law governing, 531, 598 

on ordinances, 774 

SPECIAL FINDINGS, 
conflicting with general verdict, 251 



SPECIAL FIREMEN, 
appointment of, 
control of, 
power to appoint. 



440, 515 
585 
651 



SPECIAL INJURY, 
by defective drainage, 156 

pleading that by obstru<3tion of street, 265 



SPECIAL LAWS, 
definition of, 

SPECIAL MEETINGS, 
of common council, 
of voters in towns, 

SPECIAL ORDINANCE, 

validity of. 



40 



107 

762 



737 



SPECIAL PATROLMEN, 
power to appoint, 

342, 347, 353, 440, 584, 651 
authority and powers of, 585 

SPECIAL SCHOOL REVENUE, 

disposing of, 911 

disposing of surplus, 915 

SPECIAL SESSION, 
annexation order is improper, 321 

SPECIAL TAX, 

for sale of liquor, 181 

time for payment of, 216 

how collected, 360 

for school purposes, 913 

mandamus to compel levy of, 914 

SPECIAL VERDICT, 
insufficiency of, 251 

showing freedom from contributory 

negligence, 251, 252 

showing contributory negligence, 273 

SPECIFIC PERFORMANCE, 
to secure removal of obstruction from 
street, 816 



INDEX. 



1039 



SPECIFIC TAXES, 
power to levy, 
on what may be levied, 



iBeferences are to Pages.'] 

STATE— Continued. 
can not assume municipal debt, 
public grounds of, 



205 
206 



SPECIFICATIONS, 
presumption as to preparation of. 
See Plans and Specifcations. 



276 



SPEED OF TRAINS, 150 

validity of ordinance regulating, 150 

effect of failure to enforce ordinance, 150 
negligence in violating ordinance, 150 
power to regulate, 542, 609 

SPEED OF VEHICLES, 
power to regulate, 147 

SPEED ORDINANCES, 
power to pass, 540, 607 



SPRINKLING ASSESSMENT LIEN, 
suit to foreclose, 

See Assessments. 

SPRINKLING AND SWEEPING, 



417 



contracts for. 




434 


cost of, 




435 


collection of assessments for, 




436 


SPRINKLING ASSESSMENT, 






lien for. 




436 


demand for, 




436 


collection of, 




436 


SPRINKLING STREETS, 






contract for, 496, 511, 


581 


,648 


notice for bids. 




511 


remonstrance, 




511 


costs of, 


511 


,581 


payment for, 




512 


time of contract, 




512 


power of board. 




562 


assessments for, 




648 



STANDING BY, 276, 789 

estoppel by, 276, 789 

effect of while improvement is made, 721 
See Estoppel; Laches. 



STARCH FACTORIES, 
regulating location of. 



377, 469 



STATE, 
no power to regulate interstate com- 
merce, 
authority as to the police power, 
delegating police power to cities, 
right to regulate railroads, 
delegating powers to municipalities, 
powers they may exercise in absence 

of regulation by congress, 
constitutional restrictions upon, 
taking private property, compensa- 
tion, 
three departments in. 



STATE BANKS, 
taxation of, 



47 
56 



685 



STATE BOARD OF EQUALIZATION, 
taxing railroads, 210 



STATE BOARD OF HEALTH, 

povv-er of, 



'45 



STATE BOARD OF TAX COMMISSION- 
ERS, 
quasi-judicial powers of, 44 

STATE CONSTITUTION, 

how amendments to affect contracts, 10 
federal rule of construction of, 15 



STATE DECISIONS, 
federal courts following, 

STATE LINE, 
city purchasing bridge at, 

STATE OF INDIANA, 
improvements along property of, 

STATE PROPERTY, 
improvements in front of, 

STATE STATUTES, 
federal rule of construction of, 

STATE TAX LAW, 
governing taxation, 



320 
250 
274 
708 
15 
688 
917 



STATE UNIVERSITY, 

donations to, 
agreements and conditions of dona- 
tion, 918 
bonds for donation, 918 
only one donation, 918 

STATED MEETINGS, 
of council, 107 

STATION-HOUSES, 
power to erect, 351 

STATIONARY ENGINEERS, 
licensing, 609 

STATUTE, 
part valid and part void, 57 

upheld if possible, 57 

amendment superseding original, 57 

injunction to prevent enforcement of 

unconstitutional, 58 

considering purpose in construing. 70S 
substantial compliance within street 

iniprovenients, 711 

construing all parts together, 719 



1040 



INDEX. 



[^References are to Pages."] 



STATUTE OF LIMITATIONS, 

applying to municipal corporation, 120 
in action for damages by overflowing 

sewer, 163 

embezzlement, 876 

STATUTOEY CONSTRUCTION, 

statute part void and part valid, 57 

STATUTORY CRIMES, 

ordinance providing penalty for, 81 

STATUTORY DEDICATION, 

what constitutes, 218 

STATUTORY LIMITATIONS, 

on indebtedness, 478 

STATUTORY OFFENSE, 

ordinance punishing, 129 

STAY, 

in suit for violation of ordinance, 82 



STEALING RECORDS, 
penalty for, 

STEAM BOILERS, 

power to license, 



874 



379 



STEAM RAILROAD, 

right of street railway to cross, 853 

STEAM WHISTLES, 
power to regulate sounding of, 538, 605 

STOCK, 

city subscribing for," 195 

subscribing to in railroad in other 

state, 202 

taxing, 205, 206 

citv taking in educational institu- 
tion, 921 
in library association, 927 
voting that in library association, 927 
corporation taking in library asso- 
ciation, 928 

STOCK IN CORPORATIONS 

mode of taxing, 209 

authority to hold, 633 

STOCK IN WATER COMPANIES, 
bonds to pay for, 699 

STOCKHOLDER, 

city as in water company, 138 

councilman as in railroad, effect, 198 

liability of city as, 200 

STOCKHOLDERS OF CORPORATION, 

accepting ordinance, 840 



STOLEN PROPERTY, 

disposition of by police officer, 889 

proceeds of sale of, 889 

payment of proceeds of to owner, 890 



STORAGE PURPOSES, 

using streets for, 



260 



STREAMS, 
power of common council over, 112 

defined, 113 

power to prohibit pollution of, 381 

control of board of public parks over, 451 
power of city over, 473 



STREET, 
taxing telegraph company for occu- 
pancy of, 4 
city can not surrender control of, 11 
power to regulate is a continuing one, 11 
regulating use of by corporations, 12 
taking railroad right of way for, 13 
opening across railroad tracks, 16 
damages for vacation of, 25 
taking land for a taking by the state, 29 
benefits and damages where prop- 
erty taken for, 29 
damages for change of grade of, 30 
right of abutting owner in, 80 
legislature can not grant exclusive 

use of, 32 

local assessments for, 47 
how indebtedness affects duty to 

repair, 52 

working prisoners on, 82 

changing grade of, 88 
includes sidewalk, 89, 226, 768 

implied powers to light, 117 

law of road does not apply to, 133 

power to regulate travel on, 133 

preventing obstruction of, 133 

duty to keep clear and safe, 134 

contract for cleaning, 136 

contracts for lighting, 140 
duties and liabilities of electric light 

company occupying, 141 

restoring at railroad crossing, 165 

locating market houses in, 166 

authorizing pipes to be laid in, 167 

power over, 216 

dedication, 217 

by prescription, 221 

across public square, 221 

appropriating lands for, 224 

condemning railroad property for, 224 

diverting to another use, 226 

use of, 226 

definition of, 226 

is highway, 226 

power over, 226 

limit of power to regulate, 226 

held in trust for public, 227 






INDEX. 



1041 



[i?e/ere?ices are to Pages.'\ 



STREET— Continued. 

corporations occupying, 227 
exclusive grant to use, 228 
how use of regulated, 228 
attempted sale of, 229 
notice of defects in, 229 
effect of permissive possession of, 229 
private occupation of, 229 
construction of canal in, 230 
liabilities for failure to keep safe, 230 
when reasonablj' safe for travel, 230 
cit}' not insurer of, 231 
duty of traveler in using, 232 
presumption as to condition of, 232 
presumption concerning obstruc- 
tions on, 235 
duty of independent contractor as to, 237 
reckless and careless driving on, 245 
driving cattle through, 245 
duty of foot passengers in crossing, 245 
railroad using, 246 
building material in, 248 
continuing power to improve, 253 
contractor's right to possession of 

for improvement, 256 
effect of non-user of, 259 
diverting to another use, 259 
using for storage purposes, 260 
granting occupancy to railroads, 262 
location of railroad in, 262 
what is an additional burden in, 263 
special interest of abutting owner in, 264 
powers of city commissioners, 296 
appropriating land for, 296 
power of common council over, 379, 539 
power to change name of, 380 
duty of owner of fee, 384 
power of board of public works over, 405 
power to regulate use of, 407 
improving one side of, 414 
sprinkling and sweepings 434 
locating through cemeteries, 460 
prohibiting digging into, 471 
prohibiting the throwing of mate- 
rials in, 472 
power of board of public works to 

open, 493 

power to grant use of, 494 

repairs and cleaning, 495 

power of council to close, 542 

working prisoners on, 554 
power to seize ground for purposes 

of, 562 

approving platting of, 563 

securing consent to cut into, 563 

changing grade of, 564 

power to regulate advertisements in, 604 

power of council to control, 607 

requiring prisoners to work on, 624 
authority of board of public works 

over, 632 

condemning property for, 635 

changing location of, 639 

power of council to open, 639 

CiT. AND To.— 66 



STREET— Continued. 

vacation of, 680 
presumption that it is in corporate 

hmits, 710 

apportioning costs of, 713 

contractor widening, 724 

power to light, 735 

exclusive use of not to be granted, 737 

poles and wires in, 738 

electric light companies occupying, 738 

granting gas company right to use, 739 

limit of power to regulate, 740 

granting right of way through, 743 

duties of town trustees as to, 761 

power of trustees to improve, 767 

power of town trustees over, 796 

duty to keep in repair, 796 

when safe for travel, 797 

power to narrow, 799 

wrongful appropriation of land for, 808 
town trustees opening and improving, 809 
dedication by plat, 811, 812 

vacating in towns, 814 
vacation for union railway company, 833 

duty of street railway as to, 837 

street railway securing right to, 844 
exclusive privileges can not be 

granted to, 845 
exclusive power of board of public 

works over, 853 

constructing canal in, 859 

vehicles not to stand on, 867 
See Change of Grade; Improvement of 
Streets ; Sprinkling Streets ; Vaca- 
tion OF Streets. 

STREET AND ALLEY INTERSEC- 
TIONS, 

cost of improving, 414 

STREET ASSESSMENT, 

payment by check, 421 
See Assessments; Installments. 

STREET AUCTIONS, 

towns licensing, 770 

STREET BEGGARS, 

power to punish, 135 

STREET BONDS, 

issue of, 724 

lien of, ' 724 
See Bonds. 

STREET CAR, 

negligence in boarding, 272 

remaining on platform of, 272 

stopping and starting, 272 

power to regulate speed of, 769 

duty to heat, 857 

STREET CAR FARE, 

validity of ordinance reducing, 21 



1042 



INDEX. 



STEEET CAR TRACKS, 
right of city to regulate, 
duty to look and listen when about 

to cross, 
use by other companies, 

STREET COASTING, 

injuries by, 

STREET COMMISSIONER, 
council can not control, 
duties of, 
removal of, 

when notice to is notice to the city, 
notice to of defective street, 
constructing street improvement, 
duty in tovrn, 
power of town trustees to appoint, 



STREET CROSSINGS, 
gates and safeguards at, 
dedication to, 
maintenance of. 



263. 



railroad failing to give signals at 
rights at, 

railroad train obstructing, 
cost of svr'eeping, 
cost of improving, 
paying for improving, 
duty of railroad at, 
work done at expense of railroad 
railroad maintaining, 
approaches to, 

requiring railroads to put lights at, 
street railway crossing steam rail 
way at, 



11 

270 

838 

246 

69 

92 

92 

92 

233 

715 

767 

768 



151 
831 
267 
268 
268 
270 
436 
571 
713 



STREET DUMP, 
as nuisance, 

STREET FAKIRS, 
power to license and regulate. 



STREET IMPROVEMENTS, 

assessments for, 19, 53, 280 

due process of law in assessments for, 29 
estimates for, 91 

sewers and drains as part of, 153, 415 



exempting property from sale for 
assessments for applying to sewers, 
petition for, 
estoppel to object to, 
control of by board of public works^ 
board of public works recommending, 334 
bonds for, 421, 506, 715 

improving streets and sidewalks, 500 
order for, 500, 569, 639 



notice of, 500, 


572, 


641 


assessments for, 500, 


503, 


718 


hens for, 500, 571, 712, 


716, 


718 


payment. 




500 


how expense of assessed, 




502 


lien of assessment, 




503 


paying by installments, 504, 571 


640 


718 


certificate of engineer, 




504 


assessment roll, 504, 


572, 


640 



[Befereiices are to Pages."] 

STREET IMPROVEMENTS 

notice of assessment, 

final estimate for, 505, 572, 

copy of assessment roll to treasurer, 

agreement by persons paying by in- 
stallments, 505^ 573, 

duty of treasure'^, 

effect of failure to pay installments, 

land or lots assessed, 

cost, how estimated, 

liability of city, 

hearing, 572, 

issuing bonds for, 574, 

treasurer's account of fund, 

petitions for, 

procedure, 

foreclosing lien for, 

without petition, 

resolution of necessity, 

notice to objectors, 

substantial compliance with statute, 

apportionment of costs, 712, 

when ordinance for sufficient, 

sale, 

order of liability, 

liability of city for, 714, 

allowance to owner who has im- 
proved, 

estimates, hov\' paid, 

final estimate of costs, 

i^eport of engineer, 

notice of hearing, 

estoppel to object to, 

liability of city for, 

sufficiency of complaint to foreclose, 

assessing railroad right of way, 

all persons may pay by installments, 

street and sewer bonds, 

lien of bonds, 

certificates to contractor, 

collecting assessments, 

foreclosure, 

when first installment due and pay- 
able, 

precept for sale, 

appeal, 

sale and conveyance, 

not in strict conformity with con- 
tract, 

effect of acceptance of work, 

act does not apply to cities of 100,000, 

estimates, 

contractors to satisfy record, 

apportioning cost of, 

in cities of less than 12,000, 

remonstrance against, 

how cost of sidewalks recovered, 

furnishing labor and materials for, 

resident owners petitioning for, 

jurisdiction, 

how petitioners for counted, 

contract should be in writing, 

how cost of apportioned, 

assessing railroad for, 



829, 830 

830! 
830 
8301 
834! 



839 



136, 246 



165 



164 

186 
273 
293 
334 



COXTINTED. 
504 

641 
505 

642 
506 
507 
570 
570 
570 
641 
642 
642 
706 
706 
707 
709 
710 
710 
711 
712 
712 
712 

714: 

715 

715 
716 
717 
717 
718 
721 
721 
722 
723 
724 
724 
724 
725 
725 
725 

726 
726 
726 
726 

729 
729 
730 
730 
730 
730 
733 
733 
790 
790 
791 
792 
792 
793 
793 
793 



INDEX. 



1043 



[Beferences are to Pages."] 



STREET IMPROVEMENTS- Continued. 

bow cost of collected, 794 

when enjoined, 798 

mode of, 799 

negligence in executing, 799 

acceptance of, 799 

vacating streets, 814 

by street railway, 839 

time for payment, 839 

bonds to secure payment, 839 
See Impkoyement of Streets. 

STREET IMPROVEMENTS IN TOWNS, 

sidewalks, 788 

requisites of sidewalk ordinance, 789 

owner failing, town makes, 789 



STREET IMPROVEMENT ASSESS- 
MENT, 

no jury trial in suit for foreclosure of, 



27 



STREET IMPROVEMENT BONDS 
not corporate debt, 
date of, 

issuing, 506, 574, 642 

interest on, 642 

paying in installments, 
prepaying, 

penalty for non-payment, 
issuing directly to the contractor 
negotiable, 
by street railroad, 
acceptance by stockholders, 
lien of bonds, 
new bonds in lieu of old, 
liability of city or town, 



52 

421 



643 
643 
643 
645 
646 
840 
840 
840 
840 
841 



STREET INTERSECTIONS, 
cost of improving, 

STREET LIGHTS, 

when contract for void. 



502, 730 



399 



STREET OPENING PROCEEDINGS, 

dismissal of, 306 

discontinuing, 309 



STREET RAILROAD, 
not an additional burden, 
right to cross steam railroad, 
power to grant right of way to, 
charter to as a contract, 
obstructing streets, 
local assessment against, 
voting for in town, 
construction of tracks, 
use by other companies, 
duty as to streets and highways, 
constructing tracks in cities of 

100,000, 
other companies using tracks, 
right to cross steam railway, 
right of street railway to cross, 
street improvements, 



263, 
263, 



853 
853 
270 
271 
271 
283 
774 
836 
836 
837 

838 
838 
839 
839 
839 



STREET railroad-Continued. 
time for payment for street improve- 
ments, 839 
bonds to secure payment, 839 
paving between tracks, 839 
acceptance by stockholders, 840 
lien of bonds, 840 
default in payment, 840 
new bonds in lieu of old, 840 
liability of city or town, 840 
duty to pave, 841 
charter to be strictly construed, 841 
not estopped to object to assessment, 841 
by-laws, 842 
rates of fares, 842 
penalty, 842 
charging unlawful fare, 843 
three-cent fares, 843 
refusal to transfer, 843 
municipal control of, 843 
termination of franchise, 843 
common council granting franchise 

to, 843 

length of franchise of, 844 
proceedings to remove from the 

street, 844 

condemning plant of, 845 

in cities of 100,000, 846 

contract with city, 846 
terms, conditions and period of 

contract, 846 

methods of propulsion, 846 

extension of lines, 846 

use of tracks by other companies, 846 

forfeiture, 846 

paving between tracks, 846 
right of city to purchase property of, 847 

forfeiture of plant of, 847 
terms binding during life of contract, 849 

may acquire other franchises, 849 

may sell and convey property, 849 

rights and powers of directors, 850 

rights and powers of shareholders, 850 

rights of creditors, 850 

liens, effect of sale on, 850 

shareholders objecting to sale of, 850 

period of contract, 851 

removal of tracks, 851 

free competition, 851 

rights dependent on ordinance, 851 

bond by. 852 

exclusive powers over streets, 853 
penalty for charging excessive fares, 853 

extension beyond city or town, 853 

consent of county board, 853 

collision with locomotive at crossing, 854 

consent of gravel road company, 854 

protection and regulation, " 854 

track on highway, 854 

use of electric power, 854 

furnishing light, heat and power, 855 

motive power, 855 
conveying and encumbering prop- 

ertv, 855 



1044 



INDEX. 



[Befere7ices are to Pages.'] 



STREET RAILROAD— Continued. 

consolidation of, 

resolution of consolidation, 

connections, 

concerning completion of lines, 

rights and privileges, 

intersecting and joining other roads, 

contracts and agreements, 

heating of street cars, 

prohibited in Monument place, 

STREET RAILWAY COMPANY, 

franchise to. contract, 

power to impose additional burdens 

on, 
taxing franchises of, 
controlling location of poles of, 
granting exclusive privileges to, 
care required of in using street, 
as common carrier, 
skill and care required of, 
using defective tracks, 
invitation to passengers, 
care required of, 
rule as to boarding cars, 
duty of motorman, 
rights in streets, 
frightening horses, 
power of board of public works 

over, 
interurban line using track of, 

STRICT CONSTRUCTION, 
of charter, 

of authority to issue bonds, 
of street improvement statute, 
of statutes authorizing assessments, 

282, 
statutes authorizing taking of prop- 
erty, 
of annexation statute, 
of street railway charter, 

SUBPENAS, 
board of public safety issuing, 
power of council to issue, 

SUBSCRIPTION FOR STOCK, 
express authority essential, 
bonds in payment of, 
complying with terms of. 



855 
856 
856 

[856 
857 
857 
857 
857 
873 



11 

12 
13 
165 
271 
271 
271 
271 
271 
271 
272 
272 
273 
273 
273 

408 
838 



116 
172 
253 

793 

296 
321 
842 



439 
544 



197 
202 
202 



SUBURBAN STREET RAILWAY, 

using line of street railway company, 837 
using line of other company, 838, 848 



SUCCESSIVE ACTIONS, 
for injury by nuisance, 
for damages, 

SUFFRAGE, 

nature of right of, 

SUITS, 
for violating town ordinances, 
school corporation maintaining, 



162 
254 



36 



780 
917 



SUITS AGAINST CORPORATIONS, 
service in, 553 

SUITS BY CITY, 

what averments unnecessary, 78, 623 
sufficiency of complaint, 553 

SUIT FOR MANDATE, 
when not removable to federal court, 268 



SUMMONS, 

service of on corporation, 

SUPERINTENDENT, 

of electric light plant, 

in constructing town sewers, 

appointing for work-house, 

SUPERINTENDENT OF PARKS, 

appointment of. 



553, 623 



773 
823 
883 



44; 



SUPERINTENDENT OF POLICE, 

appointment of, 339, 344 

power to appoint, 349 

board of public safety appointing, 438 
selection of, 513 

powders of, 515, 585 

authority of, 650 

when retired members subject to 
orders of, 906 

SUPERINTENDENT OF WATER- 
WORKS, 
liability on bond of, 139 

bond of, 696 

SUPERINTENDENT OF WORK-HOUSE, 

duties of, 885 



SUBSEQUENT REPAIRS, 
when evidence of proper, 

SUBURBAN COMPANY, 

using tracks of other company, 
not to lay tracks or erect poles, 

SUBURBAN RAILWAY, 
power to be used, 



238 



838 
839 



849 



SUPERIOR COURT, 
power in annexation proceedings, 

547, 548 
appeal to in condemnation proceed- 
ings, 567 

SURETIES, 

liability on bond of city clerk, 85 

when not bound by statement of 

treasurers, 99 



INDEX. 



1045 



[Beferences are to Pages."] 



SURETIES— Continued. 
liability on official bonds, 103 

liability on bond of superintendent 

of water-works, 139 

completing street improvement, 285 

SURFACE WATER, 

liability for injury by, 156 

injury by, 257 

SURPLUS EARTH, 

abutter's right to, 279 

where street improved, 295 

SURPLUS GRAVEL ROAD TAX, 

disposition to be made of, 688 

SURPLUS RAILROAD AID TAX, 

disposition to be made of, 688 

SURRENDER OF CHARTER, 

when may be made, 179 

petition for, 180 

decree declaring, 180 

vested rights not affected by, 180 

SURVEYS, 

duty of civil engineer to make, 88 
recording that of drainage proceed- 
ing, 192 
for levees, 192 
in annexation proceedings, 321 
to supply lost town plat, 819 
power of water-works companies to 
make, 860 

SURVEY AND MAP, 

before incorporation of town, 747 

making public, 748 

SURVEY AND PLAT, 

power of council to direct, 681 

certified copy of as evidence, 682 

city adopting, 682 

duty of city clerk to keep, 682 

SWEEPING STREETS, 
power of board of public works, 493 

assessments for, 681, 648 

contracts for, 581, 648 

SWEEPING, 

See Sprinkling and Sweeping. 

SWITCH, 

laying in streets, 263 

street railway constructing in streets, 838 



TAKING OF PROPERTY, 

annexation to city is not, 17 

prohibiting manufacture of intoxi- 
cants is not, 23 



TAKING OF PROPERTY— Continued. 

compensation for, 28 

by change of street, 30 

change of grade is not, 91 

See Condemnation. 



TALLOW CANDLERIES, 

regulating location of, 

TANNERIES, 
regulating location, 

TAPPING SEWER, 
securing permit for, 
in town, 
negligence in. 

See Sewer Connections. 



126 



469 



160 
823 
824 



TAX, 



See Taxes. 



TAX COMMISSIONERS, 

no power to punish for contempt, 40 

not a judicial tribunal, 44 



TAX DEED, 

as evidence of tax lien, 

TAX, DUPLICATE, 

authority conferred upon treasurer 

by, 
what to show on, 
duty of comptroller to examine, 

402, 490, 
comptroller making, 
duty of comptroller as to, 
auditor to put taxes on, 
entering bank stock on, 
when assessment not required to be 

on, 
town trustees delivering to county 

auditor, 

TAX LEVY, 

limit of, 

by city, lien of, 

property subject to, 

how certified, 

effect of failure to make, 

power of city council, 

when continuous, 480, 547, 

limit of, 589, 

based on estimates, 

to pay interest and principal of bonds, 

time of fixing in towns, 

when that by town trustees void, 

to pay educational aid, 

by cities, for library, 



786 



362 

560 
491 
629 
657 

686 

722 
786 



175 
207 
207 
362 
389 
478 
614 
656 
626 
674 
7S3 
783 
920 
931 



TAX LIST, 

duty of city clerk to make duplicate, 85 
for taxation in towns, 783 



1046 



INDEX, 



\_Beferences are to Pages.^ 



TAX SALE, 






redemption from, 


102 


213 


how to conduct. 




103 


when void, 




213 


lien acquired at, 




213 


doctrine of caveat emptor at, 213 


688, 


784 


refunding money collected at invalid 


213 


rights of purchaser at, 




214 


notice of, 


866 


593 


enforcing bids at. 


366 


660 


certificate of purchase, 




366 


payment of bids, 


593, 


660 


guaranty. 




593 


.'aws applicable to, 


594 


661 


notice of, 




660 


fees on, 




688 


for town taxes, 




785 


demand before. 




785 


caveat emptor, 




786 


private sale unauthorized. 




786 


refunding taxes when invalid, 




786 


TAXATION, 






unit rule in, 




5 


of corporations doing interstate 


com 


- 


merce business, 




6 


of railroad bridge in two states. 




6 


nature of power of, 




13 


of franchises, 




13 


due process of law in. 




18 


equal protection of the law in. 




18 


for public improvements, 




41 


duty of general assembly to provide 




system of, 




45 


just valuation for. 




46 


uniformity in, 




46 


to be equal and uniform, 




46 


exemptions from, 




47 


by cities and towns for schools. 




47 


in aid of railroad, 




48 


assessment of bank stock for, 




87 


property exempt from. 




158 


low far controlled by general laws, 


206 


construction of statute exempting 




property from, 




207 


situs of personal property for, 




207 


of farm lands, 




210 


equalization, 




211 


fixing rate. 


211 


627 


refunding. 




211 


sinking fund tax. 




214 


making temporary loans, 




215 


payment of taxes. 




215 


assessment and equalization, 




215 


time to pay taxes. 




215 


penalty for delinquency, 




215 


:br turnpikes and gravel roads, 




227 


general and specific taxes, 




205 


common council fixing rate of. 




399 


power of common council. 


478 


613 


duplicate for. 




528 


when taxes are due, 




528 


by common council. 




545 


assessments for, 589, QoQ 


686 


687 



TAXATION— CoxTiNUED. 

duty of county auditor, 589, 656, 785 

limit of lev3% 589 

auditor to put taxes on duplicate, 657 

notice by county treasurer, 657 

duty of county treasurer, 657 

sale of lands and lots, 660 

deduction of debts, 684 

of state banks, 685 

auditor's duty, 685 

auditor's statement, 686 

collection of taxes, 686 

taxes as a lien, 687 

agricultural lands in city, 687 

state tax law to govern, 688 

non-resident's personal property, 688 

for extension of water-works, 695 

to pay water-works bonds, 695 

to pay mortgage on water-works, 695 

tax levy, 783 

of water craft, 783 

warrant for collection, 784 
appraisement of real estate in certain 

cases, 784 

tax, how collected, 785 

redemption, of real estate, 786 

duplicate to auditor, 786 

county treasurer to collect, 787 

road tax, 787 

levy of road tax, 787 

to pay for water-works, 787 

public library exempt from, 932 

TAXATION IN CITIES AND TOWNS, 

bank stock, 684 



TAXATION IN TOWNS, 
annual tax, 



78'2 



TAXES, 

on telegraph poles and wires, validity, 5 
on vessels engaged in interstate com- 
merce, 7 
attempt to set-off city warrant against, 85 
paj^ment by city orders, 99 
collecting delinquent, 100 
contract to collect is illegal, 100 
lien of, 100 
collecting, 100 
sale of land for, 101 
sale of chattels for, 101 
fees of treasurer on property seized 

for, 102 

fees for collection of, 103 

treasurer showing statement of col- 
lection of, 177 
levying for sinking fund, 179 
collecting levee assessment as, 194 
enjoining collection to pay aid bonds, 199 
levying to pay interest on public 

debt, 209 

levying to pay railroad aid, 209 

act curing assessment of, 210 

on property illegally annexed to city, 212 



INDEX. 



1047 



[JBe/ere?ices a 

TAXES— Continued. 

recovering those illegally assessed, 212 
time to pay, 215 
paying in installments, 215 
where annexation is illegal, 319 
recovery of, 319 
for parks, 356 
duty of county treasurer, 358 
citv treasurer settling for, 359 
city of 70,000, basis of levy, 360 
assessment, duty of county auditor, 361 
how levy made in cities of 70,000, 361 
levving for citv purposes, 361 
limit of levy, " 361 
duty of county treasurer to collect, 362 
sale of personal property for, 363 
enforcing payment by sale, 366 
power of common council to levy, 387 
to pay for water-works, 526 
collection by treasurer, 588 
auditor to put on the duplicate, 590 
notice by county treasurer, 590 
collection of, 590, 686 
delinquency, 590 
partial payment of, 591, 658 
collection of delinquent, 591 
settlement bv county treasurer, 591 
delinquent list, 592, 659 
delinquent list of lands, 593 
sale of delinquent lots, 593 
laws applicable to sales for, 594 
duty of comptroller as to, 629 
collection by treasurer, 655 
county treasurer to collect delin- 
quency in, 657 
effect of failure to pay installment, 658 
settlement by county treasurer, 658 
payment for school taxes, 659 
payment of school delinquency, 660 
levying for sinking fund and interest, 672 
to pay interest and principal of 

funding bonds, 673 

interest coupons good for, 674 

after annexation, 678 

recovering illegal, 687 

when payable, 688 

private sale for, 688 
levy and collection in cities of less 

than 70,000, 689 

to pa}' loans on water-works, 699 

street improvement lien junior to, 713 

levying for parks, 743 

power of marshal to collect, 761 

power of town trustees to levy, 768 

for lighting, 771 

to pay for electric lights, 772 

to pay for light bonds, 773 

to pay interest on bonds, 779 

wrongful seizure of property for, 785 

injunction against illegal, 786 

limit of for water-works, 787 

parties in suit to enjoin, 818 

for firemen's pension fund, 897 

for police pension fund, 904 



?'e to Pages.'] 

TAXES— Continued. 

collecting for schools, 
levying for library, 
for library limited, 

See License Tax. 

TAXING DISTRICT, 

county as, 

TAXPAYER, 

Mdien incompetent as juror, 27, 

enjoining ultra vues contract, 
surrendering city charter, 
enjoining issuance of bonds, 
petitioning town to incur debt, 
when released from educational aid, 

TEACHER'S SALARY, 
civil township not liable for, 

TELEGRAPH COMPANIES, 

congress controlling, 
imposing license tax on, 
imposing rental tax on for use of 

streets, 
unit rule in taxing, 
validit}^ of statute taxing, 
requiring them to place their wires 

underground, 
taxing property of, 
granting use of streets to, 
authorizing use of streets by, 

TELEGRAPH POLES, 
ordinance imposing tax on, 
power to control location of, 

TELEGRAPH POLES OR WIRES, 

a crime to injure, 

TELEGRAPH WIRES, 
ordinance imposing tax on, 

TELEPHONE, 

definition of, 

TELEPHONE COMPANIES, 

unit rule in taxing, 

requiring them to place their wires 

underground, 
regulating property of, 
power to grant use of streets to, 
voting for in town, 
seal, 

powers, 862, 

duty to supply applicants impartially, 
as common carrier, 
contracting against negligence, 
duty under toll service, 
duty as to connections and facilities 

for use, 
property devoted to public use, 
extra charge for non-subscribers, 



912 
929 
931 



209 



252 
118 
179 
199 
776 
921 



909 



4 
4 

4 
6 
6 

17 

211 
494 
633 



5 
165 



879 



863 



6 

17 
30 
494 
774 
862 
863 
863 
863 
863 
864 

864 
864 
864 



1048 



INDEX. 



\_Eeferences are to Pages.'] 



TELEPHONE COMPANIES— Continued. 

rental charges, 864 

toll stations, 864 

lines extending into other states, 864 

patents, 865 

TELEPHONE CONDUITS, 

under sidewalk, 260 

TELEPHONE MESSAGE, 

penalty to disclose, 880 

TELEPHONE POLES, 

power to control location of, 165 

TELEPHONE POLES OR WIRES, 

a crime to injure, 879 

TELEPHONE SYSTEM, 

not an additional burden, 263 

TEMPORARY LOANS, 

anticipating current revenues by, 174 

right to make, 214 

when authorized, 388 

power to make, 479 

when may be made, 546 

by common council, 614 
See Bonds; Loans. 



TERM OF OFFICE— Continued. 

park commissioners, 
in cities of 35,000, 
of town trustees, 

TERM OF SCHOOL, 

trustees fixing. 



446 
531 
755 



910 



TERRITORY, 

disannexing from city, 

392, 482, 549, 616, 680 
annexing to city, 615 

annexing that in adjoining county, 677 
title to school property on annexa- 
tion of, 916 
See Annexation of Terkitoey. 

THEATRES, 

power of city to regulate, 133, 608 

licensing, 540 

THIRD PERSONS, 

acts of causing defective streets, 235 

negligence of contributing to per- 
sonal injury, effect, 235, 804 
negligence of as a defense, 236, 804 
causing defect in street, 804 
recovering cost of repairs from, 804 

THISTLES, 



TEMPORARY OBSTRUCTIONS, 




railroad company to destroy, 


871 


in streets, 134 


,867 






building material. 


248 


THREE CENT FARES, 








validity of act, 


843 


TEN PER CENT. LIMIT, 








in sewer assessments, 


158 


TIE VOTE, 








effect of, 


38 


TENDER, 




mayor voting in case of, 


106 


effect of in harbor condemnation 




in town election, 


754 


proceedings, 


182 






where part of taxes are illegal, 


207 


TIMBER, 




in suit to quiet title, 


258 


notice of tendency to decay. 


250 


burden of proving want of, 


312 






effect on costs, 


412 


TIME, 




of benefits and damages in park 




for payment of taxes, 


215 


proceedings. 


454 


to complete street improvement, 


277 


of damages in condemnation pro- 








ceedings. 


569 


TITLE, 








to ordinances. 


120 


TENDER OF DAMAGES, 




of riparian owner, 


146 


effect on right to injunction, 


311 


conveyed by deed of city, 


168 


effect of. 


312 


in abutting owner, 


259 


in Avater-works condemnation. 


693 


in tax sale, 


366 


in opening street, 


808 


not affected by vacation of cemetery 


, 705 






on vacation, 


815 


TENURE OF OFFICE, 




that acquired by canal was a fee, 


859 


how determined. 


54 


to school property, 


915 


constitutional law. 


446 


to school property on annexation, 


916 


See Office. 




TOLL STATIONS, 




TERM OF OFFICE, 




of telephone company, 


864 


length of. 


54 






for officers in city, 


66 


TOLLS, 




board of public works, 


333 


power to regulate, 


14a 



INDEX. 



1049 



[Beferences are to Pages.'] 



TORT, 

payment of judgment for, 9 
municipality liable for, 134, 246 
suing corporations in, 161, 227 

of officers and contractors, 238 

liability for those of servants, 238 
liability of union railway company 

for, * 834 

TOWN, 

licensing hawkers and peddlers, 3 

what the term includes, 61 

becoming cit)-, 63 

duty of common council in, 65 
not liable for change of street grade, 91 

may emplo}^ special counsel, 97 

who may build bridges in, 148 

bridge outside but adjoining, 148 
when charged with maintaining 

bridge, 149 

constructing bridges in, 248 
parts of not to be annexed, 548, 616 

erecting prison, 669 

law governing, 682 

incorporation and organization, 747 

redistricting, 752 

right to corporate,rein 757 

proceedings for dissolution of, 757 

government and powers, 758 

powers of trustees, 762 

officers' contracts with are void, 763 

referendum in, 774 

duty to keep streets in repair, 796 

change of name, 815 

annexing territory to, 817 

crimes not punishable by, 866 

penalty for running horses in, 880 

school trustees in, 909 

control of schools, 911 

abandoning schools, 911 
can not issue negotiable securities, 913 

donation by to state university, 917 
See Cities and Towns. 

TOWN AND CITY, 

duty of railroad to fence in, 267 

TOWN BUILDING COMPANY, 



may be incorporated. 


824 


notice. 


824 


written statement. 


824 


statement to be recorded, 


824 


twenty may organize. 


824 


when incorporated. 


825 


powers. 


825 


records as evidence. 


825 


trustees may convey, 


825 


TOWN CLERK, 




keeping claim docket, 


675 


duties of, 


759 


duty at tax sales, 


785 


duty as to collecting cost of sewer. 


822 


See City Clerk. 





TOWN ELECTIONS, 

when and how held, 666 

voting place, ^ 753 

polls, opening and closing, 753 

inspector's duties, 753 

officers to be elected, 753 

TOWN MARSHAL, 

bond of, 758 

TOWN OFFICERS, 

turning books over to successors, 758 

pay of, 761 

contract with void, 793 

TOWN ORDINANCE, 

complaint in suit for violating, 79 

reasonableness of, 769 

TOWN PRISON, 
committing prisoners to, 780 

TOWN PROPERTY, 

power to insure, 768 

TOWN SUING, 

proof, 761 

TOWN TAX, 

against residents of town, 787 

levy of, 787 

See Taxation. 

TOWN TREASURER, 

bond of, 758 

contract with void, 758 

suit on bond of, 758 

duties of, ■ 758 

publishing settlement of, 758 

TOWN TRUSTEES, 

See Trustees op Town. 

TOWN WORK-HOUSE, 

use of, 885 

TOWNSHIP, 

aiding railroads, 53, 199 

conveying school property to, 911 

TOWNSHIP SCHOOL PROPERTY, 
annexation of, 389 

TOWNSHIP TRUSTEE, 

exempting from work on highways, 828 

control of schools by, 911 

levying tax for library, 929 



TRACKS, 

union railway company building, 
conforming to grade of street, 
street railway constructing in street, 
suburban company not to lay, 
not an additional burden, 



833 
836 
80S 
839 
839 



1050 



INDEX. 



iBeferences are to Pages.!; 



TRACKS— Continued. 

using those of other companies, 846 

right to remove those of street rail- 
way, 851 
of street railway company in high- 
way, 854 

TRACTION ENGINE, 

breaking through bridge, 249 

TRAINS, 

right of passage at street crossings, 268 
regulating running through cities, 

474, 609 
power to regulate speed of, 542 

TRANSCRIPT, 

on appeal from precept, 286, 727 

construction on appeal from precept, 290 
amending on appeal from precept, 290 
on appeal from precept, supplying 

omissions, 291 

on appeal in street opening proceed- 
ings, 308 
appeal in improvement proceedings, 810 
from city court, 330 
on appeal in annexation proceedings, 680 

TRANSFERS, 

duty of street railway to give, 848 

TRANSPORTATION CHARGES, 

power of city to regulate, 147 

TRAVEL, 

when streets and turnpikes reasona- 
bly safe for, 230 

on defective street with knowledge 
of defect, 240 

Avhen streets and turnpikes safe for, 797 

TRAVEL ON STREET, 

city regulating, 133 

TRAVELER, 

duty of in using street, 232 

injured by change in grade, 266 

rights at street crossings, 268 

knowledge of defect in street, 803 

TREASON, 

not a bailable offense, ^7 

TREASURER, 

as city officer, 66 

filling office of when vacant, 69 

appointment where office is vacant, 72 

clerk delivering duplicate tax list to, 85 
authority conferred upon by tax 

duplicate and warrant, 86 
duties of, ' 97, 98, 537 

paying interest on orders, 98 

duty to make monthly statements, 99 

county treasurer as city treasurer, 99 



TREASURER— Continued. 

assessment of property by, 99 

collecting delinquent taxes, 100 
making return of land sold for taxes, 102 

making annual settlement, 102 
fees where property seized for taxes, 102 

liability on bond of, 104 

estoppel by report of, 104 

selling bonds, 170 

when orders on forbidden, 175 

duties of, 177 

publishing statement, 177 

use of funds, 177 

duty as to precept for assessment, 286 
office abolished, citj'' of seventy 

thousand, 357 

when warrants on prohibited, 888 

comptroller settling with, 402 

duty as to local assessments, 421 

duty to pay improvement bonds, 422 

penalty to accept pay, 443 

refusal to perform duties, 443 

duty as to assessment for parks, 453 

paying license fees to, 490 

copy of assessment roll to, 505 

duty as to street improvements, 506 
duty as to payment of improvement 

bonds, 507 

duty in reference to issuing bonds, 546 

duty as to street assessments, 573 

account of fund, 573 
duty in reference to payment of 

bonds, 575 
duties as to collection of taxes, 588 
comptroller examining accounts of, 630 
collecting assessments for improve- 
ments, 641 
duty in collecting assessments, 642 
settling with city clerk, 654 
settlement by, 655 
collection of '^taxes by, 655 
collecting water rents, 696 
demand by on precept, 726 
duty to levy precept, 727 
commissions on sales on precepts, 728 
collecting proceeds of bonds, 779 
embezzlement by, 876 
trustee police pension fund, 902 
of school trustees, 909 
See City Treasurer. 

TREASURER OF STATE, 
consenting to street improvement, 

274, 



TREASURY, 

paying money into, 

TREES, 
power to regulate planting of, 
See Shade Trees. 

TRESPASS, 

b}'- contractor on abutting lands, 
in constructing sewer. 



708 
655 

164 



162 
710 



INDEX. 



1051 



[^Befereii 

TRIAL, 

in city court, 

on appeal from annexation proceed- 
ings, 389, 

of charges against firemen and 
policemen, 

on appeal from precept, 

TRIAL BY JURY, 
in mayor's court, 



TRIAL DE NOVO, 

in annexation proceedings, 

TROVER, 

property sold for taxes. 



TRUST, 

streets held in trust for the public, 

TRUSTEES, 

See Board of Trustees. 

TRUSTEES FOR PUBLIC, 

municipal corporations as, 



TRUSTEES OF POLICE PENSION 
FUND, 

appointment of, 902 

powers of, 902 

mayor as president of, 902 

officers of and their duties, 902 

TRUSTEES OF TOWN, 

as members of board of health, 670 
how elected, 753, 755 
duties of, 753 
collateral attack on acts of, 753 
term of, 755 
vacancies in, 756 
president of, 756 
oath of, 756 
corporate name, 756 
duty as to streets, 761 
powers of, 762 
not the corporation, 762 
power to contract, 762 
power to employ counsel, 762 
power to vacate highway, 768 
control over sidewalks, 768 
power to make by-laws and ordi- 
nances, 768 
power to build school-houses, 770 
power to construct wharves, 770 
licensing and regulating business, 770 
requiring shade trees to be planted, 771 
establishing fire limits, 771 
lighting streets, 771 
tax for lighting, 771 
putting in electric hght plant, 772, 773 
jurisdiction over public grounds and 

wharves, 776 

how money appropriated, 776 

claims, 776 



ces are to Pages.] 

TRUSTEES OF TOWN— Continued. 

331 loans by, 776 

power to issue bonds, 778 

680 prescribing fines, 779 

eligible as school trustee, 754 

438 certificate of election, 754 

726 assault and battery by, 762 

power to employ factors and brokers, 763 

power to purchase fire engines, 763 

552 power to purchase real estate, 763 

selling land to town, validity, 763 

organizing fire companies, 763 

324, 679 power to declare and abate nuisances, 764 
restraining animals from running at 

large, 765 

'85 licensing sale of liquors, 766 

locating and regulating markets, 767 

power to improve streets, etc., 767 

227 fixing annual tax, 782 
delivering tax duplicate to county 

auditor, 786 

levying road tax, 787 

suing to recover costs of sidewalks, 790 

power over streets, bridges, etc., 796 

742 notice to town, 801 

opening and improving streets, 809 

annexation by, 817 

supplying lost plat, 819 

power over sewers, 820 



TRUSTEES OF WATER-WORKS, 

See Water-Works Trustees. 



TUNNELS, 

board constructing, 
assessments for. 



578, 646 
578, 646 



TURNPIKES, 

power of state over, 7 

taxation for, 227 

when reasonably safe for travel, 230, 797 

TWENTY" Y^EARS' USER, 

effect of, 221, 222 

highway by, 222 

TWICE IN JEOPARDY, 

person not to be put, 

TWO-THIRDS VOTE, 

in making loans, 

to impeach or remove officer, 



26 



170 

478 



u 



UNCERTAINTY, 

effect of in returns of election, 

UNCLAIMED PROPERTY, 

sale of, 

payment to owner. 

UNCONSTITUTIONAL STATUTE, 
injunction to prevent enforcement, 



889 

890 



58 



1052 



INDEX. 



\_Beferences are to Pages.'] 



ULTRA VIRES, 

when city estopped to set up, 148 

sale of street is, 229 

estoppel to set up as a defense, 249 

ULTRA A^IRES CONTRACTS, 

impairing obligation of, 10 

taxpayer enjoining, 118 

UNAUTHORIZED CONTRACTS, 

penalty for executing, 627 

UNAUTHORIZED RECORDED PLAT, 

not evidence, 814 

UNFINISHED CANALS, 

completion of, 858 

UNIFORM OPERATION, 

laws to be of, 41, 42 

UNIFORM TAXATION, 

providing for, 45 

UNION PASSENGER STATIONS, 

union railway company building, 833 

UNION RAILWAY COMPANY, 

power to organize, 832 

certificate of incorporation, 832 
how articles of incorporation signed 

and attested, 832 

rights as owner or lessee, 832 

powers, 832 

condemnation by, 833 

vacating streets and allevs for, 833 

liabilities of, ' 834 

notice bv of vacation of streets and 

alleys, 834 

UNITED STATES CENSUS, 

effect of in organizing city, 370 

UNITED STATES LANDS, 

effect of user of, 221 

UNITED STATES PROPERTY, 

not subject to taxation, 208 

UNLAWFUL FARES, 

street railway company charging, 843 

UNPLATTED LANDS, 

annexing to city, 317 

taxing that in city, 687 

including in town, 748 



UNPLATTED TERRITORY, 

annexation, 



321, 817 



UNREASONABLENESS, 

when ordinances void for, 122 

UNSKILLED LABOR, 

minimum wages for, 676 

URINALS, 

power to construct, 634 

USE, 

effect of with owner's consent, 221 

USE BY PUBLIC, 

effect of interruption of, 221 

USE OF STREETS, 

extent and limits of, 226 

negligence of gas company in, 229 

in cities, 245 

power of council to regulate, 379 
exclusive privilege not to be granted, 737 

police power, 740 

limits of, 797 

USER, 

presumption of dedication by, 220 

of United States lands, effect of, 221 

of right of way, effect of, 270 
dedication by does not apply to 

streets, 812 

dedication by, 813 

notice of easement from, 859 



V 

VACANCY, 

in office of sinking fund commis- 



UNREASONABLE SEARCHES OR 
SEIZURES, 
prohibited. 



24 



si oner, 




178 


on board of police, 




338 


filling in office of councilmen. 




374 


election to fill that in office of mayor 


,394 


filling in elective office, 


463 


599 


office of councilmen. 




466 


in office of mayor, 483, 550 


618 


how filled, 


43 


532 


duty of mayor to fill. 


651 


619 


in office of town trustee, 




756 


filling in office of marshal, 




760 


VACANCY IN OFFICE, 






affect of, 




65 


treasurer, filling. 




69 


how filled, 




72 


term of appointee. 




72 


election to fill. 




871 


VACATION, 






of cemeteries. 




703 


of unused public square. 




816 


of streets and alleys for union 


rail- 




way company. 




833 


VACATION OF ADDITIONS, 






how accomplished, 




815 



INDEX. 



1053 



\_Beferences ai 

VACATION OF CEMETERIES, 

petition and finding, 70-i 

title not affected, 705 

VACATION OF HIGHWAY, 

po^Yer of town trustees, 768 

VACATION OF OFFICE, 

by defalcation, 43 

VACATION OF STREET, 

damages for, 25 

right of abutting owner, 297 

by abandonment and non-user, 298 

authority in reference to, 312 

proceedings of commissioners, 313 

objection to, 313 

who may object to, 313 

report of commissioners, 314 
acting on report of commissioners, 314 

essentials of report, 314 

clerk's duty, 314 
reference of report and proceedings, 314 

on disannexation, 680 

notice of, 681 

power of town trustees, 767 

in towns, 814 

proceedings concerning, 815 

title on, 815 

owners consenting to, 815 



See Opening and Vacation of Stkeets. 

VACCINATION, 

ordinance requiring, 108 

pay for, 147 

VAGRANTS, 

power to punish, 135 

jurisdiction over, 203 

VALIDITY OF ORDINANCE, 

when not in question, 205, 780 

VARIANCE, 

effect of, 267 
effect of in names of contractors, 289 

VEHICLE, 

pov/er of city to regulate, 128, 165, 539 

power to regulate speed of, 147 

levying specific taxes on, 206 

bicycle is, 244, 867 

regulating use of on streets, 379, 471 

licensing, 472 

regulating speed of, 607 

power to license, 608 

not to stand on street, 867 

VEHICLE TAX, 

power to levy, 407 

VESTED RIGHT, 
in judgment for damages by mob, 23 

none in law or remedies, 33 



•e to Pages.'] 

A^ESTED RIGHT -Continued. 

none in public property, 34 

mortgage confers, 34 

city has none in office or property, 61 

exercise of police power, 131 

not affected by surrender of charter, 180 

to damages, 305 

in improvement proceedings, 310 

VESTIBULE STREET CARS, 

duty to provide, 873 

penaltj^ for failing to provide, 873 



VETO, 

of ordinances, 37( 

passing ordinance over, 
by mayor, 



;, 468, 536, 603 
484 
551 



VIADUCT, 
validity of contract in reference to 

erection of, 11 

compelling construction of, 266 

power to regulate and protect, 379 

requiring railroads to construct, 385, 476 
board constructing, 578, 646 

assessments for, 578, 646 

VIEWERS FOR HIGHWxiY, 
notice and dutj'^ of, 826 

VISIBLE DEFECT, 
in sidewalk, injury by, 243 

VITAL STATISTICS, 

registrar of, 662 



VOID BONDS, 
legalizing, 

VOID CONTRACT, 

in excess of appropriations, 
attempted ratification, 



173 



399 
400 



VOLUNTARY PAYMENT, 

of taxes, effect, 212, 784 

no recovery, , 295 

VOLUNTARY SERVICES, 

recovery for, 108 

VOTES, 

cast for inehgible candidate, 45 

canvass in city election, 70 

to consolidate city and town, 676 

on water-works, 690 
penalty for selling or offering to sell, 873 

VOTER, 

qualifications of, 35, 664 

effect of attempt to bribe, 36 

number to precinct, 665 

notice to of town election, 750 

special meetings in towns, 762 

submitting ordinances to, 774 



1054 



INDEX. 



\_Beferences at 



VOTING MACHINES, 

right to use, 

right to purchase, 

capacity of, 

existing laws continue in force, 

time limit for voting, 

duties of election officers, 

voting precincts, 

care and use of, 

in city elections, 

penalty for tampering with, 

VOTING PLACE, 
in town elections, 

VOTING PRECINCTS, 
common council creating, 



w 

WABASH AND ERIE CANAL, 
bridge over, 

WAITING ROOMS, 

duty of railway to provide, 

WAIVER, 

of irregularities in corporate organi- 
zation, 

of irregularities in assessments, 

of defense of bonds 

of irregularities, 

of objections to city commissioners, 

by electing to pay in installments, 

420, 

of right to pay in installments, 

to pay in installments, effect of, 

of constitutional question, 

estoppel by, 

of notice in condemnation proceed- 
ings, 



666 
667 
667 
667 
667 
668 
668 
668 
668 



753 



64 



249 



872 



62 
159 
179 
294 
300 

724 
573 
714 
715 
725 

807 



WARDS, 

dividing cities into, 64, 373, 465 

judicial notice of, 64 

ordinance creating, 64 

effect of councilmen removing from, 

67,68 
posting ordinances in. 111 

council creating, 534, 601 



WARNINGS, 

railroad failing to give, 

WARRANT, 

arrest without, 94, 341, 

validity of, 

issuing funding bonds in place of, 
city treasurer drawing for warrants, 
issuing bej'ond appropriations, 

penalty, 
presentment to comptroller, 



270 



760 
95 

174 
307 

400 
401 



-e to Pages.'] 






WARRANT— Continued. 






when not to be drawn. 




479 


comptroller honoring. 




489 


from police court, service of, 




523 


when not to be issued. 


546 


, 614 


process by, 




554 


penalty for issuing illegal, 


558 


,627 


what they shall state, 




558 


comptroller issuing, 




628 


issue by towns, 




674 


for collection of town taxes. 




784 


for pension money, 




900 


comptroller issuing against school 




funds. 




924 



WARRANTS ON TREASURER, 
when prohibited, 



388 



WATER, 

granting exclusive privilege to furnish, 11 

regulating use and supply of, 380 

power to prohibit pollution of, 381 

power to contract for, 495 

power to regulate use and sale of, 541 
ordinance in reference to keeping 

pure, 605 

free for public uses, 698 

power to prevent pollution, 699 

debt created by contract for, 735 

paying for, 777 

power to furnish, 861 

WATER COMPANIES, 

incorporation of, 861 
See Water-Woeks Companies. 

WATER CONNECTIONS, 

power to regulate, 166 

regulating making of, 607 

WATER-COURSES, 

power of council over, 112 

defined, 113 

interfering with, 139 

power to improve, 145 

constructing harbor on, 180, 181 

authority to vacate, ?I2 

power to change, 406, 564 

change of, 427 

assessments for change of, 427, 646 

change and construction of, 431 
control of board of public parks over, 451 

power of city over, 473 

change of, 508 

cleaning and purifying, 604 

changing location of, 639 

board constructing, 646 

WATER CRAFT, 

power to regulate, 144 

lien on for wharfage, 145 

where to be taxed, 208 

taxation of, 783 



INDEX. 



1055 



Y\MTER POWER, 
cit\' aiding, 
authority to farnish, 



WATER PRIVILEGES, 
securing by condemnation, 862 

WATER RATES, 

ordinance fixing, 21 

WATER RENTS, 

lien of, 20 

assessing and collecting, 525 

power to assess and collect, 596 

collection, 696, 697 

WATER SUPPLY, 

debt created by contract for, 50 

WATER THOROUGHFARES, 
power to construct and regulate, 183 



{Beferences are to Pages.'] 

WATER-WORKS BONDS, 
200 power of city to issue and sell, 
859 power to issue, 

taxation for payment of, 



VATER- WORKS, 




city may construct and operate, 


10 


power to construct, 


137 


contract for construction of, 


138 


issuing bonds for. 


168 


tax to pay for, 


526 


DOwer to erect and operate, 563, 633 


ocation and condemnation, 


691 


jurisdiction to condemn for. 


691 


assessment and report. 


692 


collateral attack on proceedings to 




establish, 


692 


tender of damages, 


693 


appeal, 


693 


trustees of water-works, 


693 


purchase of. 


694 


valuation, 


694 


purchasing subject to mortgage, 


694 


taxation for extensions, payment of 


bonds, mortgage, etc., 


695 


control of, 


695 


trustees abolished in certain cities 




and towns, 


695 


control by city or town. 


695 


superintendent of, 


696 


duties and pay of trustees. 


696 


by-laws and rules. 


696 


water rents, 


697 


application of fund, 


697 


reports, 


697 


how funds kept, 


697 


contracts, 


697 


investigating committee, 


697 


protecting streets while construct- 




ing. 


697 


water free for public uses, 


698 


attachments regulated, 


698 


tax to pay loan on. 


699 


lien of tax. 


699 


preventing pollution. 


699 


Donds to pay for stock in, 


699 


voting for in towns, 


774 


tax to pay for, 


787 



WATER-WORKS COMPANY, 

city as stockholder in, 

nature of contract with, 

contract with, 

bonds to pay for stock in, 

powers of, 

consent of town, 

rights of existing companies, 

WATER-WORKS STOCK, 

city may sell. 



139 

690, 694 

695 



138 
139 
691 

699 

858, 860 

862 

862 



138 



WATER-WORKS TRUSTEES, 

appointment, 524 

salary, 524 

bond of, 524 

by-laws, 525 

water rents, 525 

surplus rents, 525 

reports by, 525 

deposit of money, 525 

moneys kept separate, 525 
contracts for works and buildings, 525 
investigation of books and papers, 526 

no charge for water for fires, 526 

attachments to pipes, 526 

notice of letting work, 626 

bond of contractor, 526 

trustees not to be interested, 526 

tax to pay for water-works, 526 

lien of taxes for water-works, 527 

jurisdiction beyond city limits, 527 

election, 596 

duties and powers of, 596 

election of, 693 

establishing water-works, 694 

charges against, 694 

removal of, 694 

enjoining removal of, 694 
abolished in certain cities and towns, 695 

duties and pay of, 696 

by-laws and rules of, 696 
bonds of, 696, 698 

collecting rents, 697 

reports by, 697 

contracts by, 697 

investigating charges against, 698 

advertising for contracts, 698 



WATCHMAN, 

on back of moving train, 270 

requiring at raih'oad crossings, 765, 805 

as protection against fire, S92 



WAY OVER STREET, 

question of fact, 



868 



1056 



INDEX, 



\_Beferences 

WEEDS, 

requiring owners to remove, 607 

railroad company to destroy, 871 

WEIGHTS AND MEASURES, 

power to prescribe, 378, 470, 539, 606 



WELL AND PUMP, 

in street, 247 

WHARFAGE, 

power to fix rates of, 144 

lien for, 145 

jurisdiction to enforce charge for, 145 

collection of, 529 

WHARFAGE FEES, 

right of cities to levy and collect, 8 

WHARFMASTER, 

appointment, 529 

bond, 529 

salarv, 529 

duties, 529 

WHARVES, 

right of state to construct, 7 

power to establish and construct, 144 

duty to repair, 145 

wrongful use of, 146 

power of town trustees to construct, 770 

jurisdiction of town trustees over, 776 

WIDENING STREET, 

resolution for, 298 

by contractor, 724 

power in reference to, 799 

WIDOWS, 
attempting to exempt from taxation, 207 

WIDOW'S EXEMPTION, 

from taxation, unconstitutional, 47 

WIFE, 

as party to suit to foreclose assess- 
ment, 722 

WINE-ROOMS, 

power to forbid use of, 129 



are to PagesJ] 

WITNESSES— Continued. 
power of council to compel attend- 
ance of, 386, 477, 544. 
punishing for contempt, 
board of public safety summoning, 
power of comptroller to examine, 
opinion not proper as to negligence, 

WOMAN SUFFRAGE, 
not proper under present constitu- 
tion. 



AVITNESS FEES, 
"'ii police court. 



459, 523 



WITNESSES, 

as to damages by change of grade, 91 

before city commissioners, 301 

city commissioners examining, 302 

as to vacation of street, 313 

policemen as, no fees, 352 



612 
386 
439 
629 

805 



136 



WOODEN BUILDING, 



as nuisance, 


144 


power to abate, 


203 


power to repair, 


326 


WORDS AND PHRASES, 




" eligibility," 


37 


"town," 43 


, 751 


"eligible," 


45 


" word town," 


61 


" ordinance and by-laws," 


120 


" drainage " includes "sewerage," 


187 


" streets," 


276 


"lots," 


317 


" police judge," 


663 


" judge of the police court," 


663 


"police court," 


663 


"treasurer," 


663 


"city treasurer," 


663 


" comptroller," 


663 


"telephone," 


863 


"fire company," 


895 


WORK, 




giving prisoners credit for, 


886 


See Manual Laboe. 




WORK-HOUSE, 




confining prisoner in, 


82 


committing prisoners to, 


554 


county boards may establish. 


883 


superintendent, 


883 


commitment to, 


883 


transfer from jail, 


884 


prisoners kept at labor, 


884 


cities and towns may commit to, 


884 


quarterly reports, 


884 


inspection by grand jury, 


885 


visitation, 


885 


duties of county physician and super- 




intendent, 


885 


use of city or town work-house, 


885 


punishment of prisoners. 


886 


credit for work, 


886 



WORK ON HIGHWAY, 
members of fire company exempt 
from. 



764 



INDEX. 



1057 



\_Beferences are to Pages.'\ 



T^^RITING, 
street improvement contract should 
be in, 793 



WRONG-DOER, 

notice to by city, 243 

notice to to defend, 252 

when city has remedy over against, 252 



WRONGFUL APPROPRIATION, 

liability for, 

of land, for street. 



WRONGFUL ASSESSMENT, 
for taxation, effect of, 

CiT. AND To.— 67 



298 
808 



'84 



YEAS AND NAYS, 
in common council on removal of 

city attorney, 96 

on passage of ordinances, 

108, 109, 469, 604 
parol evidence of, 109 

mine pro tunc entry of, 109 

sufficient showing of, • 110 

an ordinance fixing salaries, 114 

when questions as to can not be 

raised, 294 

on ordinances, 376 

failure to enter on improvement reso- 
lution, 711 



Whole number of pages, 1110. 




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